United State v. Prieto-Molinar

10 F. App'x 551

Opinion

MEMORANDUM

Footnotes

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Jorge Prieto-Molinar appeals his guilty-plea conviction and 46-month sentence for being an alien found in the United States following deportation, in violation of 8 U.S.C. § 1826. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

Prieto-Molinar contends that because Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), effectively overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), his sentence is illegal because it exceeds the two-year statutory maximum authorized under section 1326(a). Prieto-Molinar further contends that the government failed to prove beyond a reasonable doubt that his previous deportation was subsequent to an aggravated felony conviction as required by section 1326(b)(2). Prieto-Molinar’s contentions are rejected in light of United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000), cert. denied, — U.S. —, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001), and Almendarez-Torres, 523 U.S. 224, 226-27, 234, 118 S.Ct. 1219, 140 L.Ed.2d 350.¹

AFFIRMED.

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.

1

. We also reject the government's contention that Prieto-Molinar lacks standing to challenge the constitutionality of section 1326(b). See United States v. Bozarov, 974 F.2d 1037, 1040 (9th Cir.1992) (constitutional challenge requires demonstration of injury in fact and substantial likelihood that judicial relief will redress injury).