Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding.
Before CANBY, KOZINSKI, and RYMER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Guillermo Zamora-Rivera appeals his 77-month sentence imposed following a guilty plea conviction for being an illegal alien found in the United States following deportation. Zamora-Rivera contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), it is illegal to impose a sentence in excess of the two-year maximum set forth in 8 U.S. C.§ 1326(a) based upon a prior felony to which he did not admit, and which was not submitted to a jury and proven beyond a reasonable doubt. Zamora-Rivera also contends that Apprendi limits Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that 8 U.S. C.§ 1326(b)(2) is a sentencing factor and not a separate offense), because Zamora-Rivera did not admit to an aggravated felony, and it was not proven to a jury. These arguments are foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), amended (Feb. 8, 2001) (order). United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir.2001).
Zamora-Rivera's request for this court to defer submission pending resolution of the petition for writ of certiorari in Pacheco-Zepeda is DENIED.
AFFIRMED.