United States v. Aldana

22 F. App'x 920

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 2, 2002
• Docket: No. 01-50128; D.C. No. CR-00-00950-NM-1
• Status: Published

Opinion

MEMORANDUM

**

Phillip Edison Aldana appeals his 77-month sentence for illegal reentry after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Aldana first contends that the district court erred in enhancing his offense level by 16 levels because the indictment did not allege that his prior conviction was an aggravated felony conviction. This contention is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.), cert. denied, — U.S.-, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

Aldana’s second contention, that the district court abused its discretion by refusing to depart downward based on his cultural assimilation, is not reviewable on appeal because the denial of departure was a proper exercise of the district court’s discretion. United States v. Morales, 898 F.2d 99, 103 (9th Cir.1990).

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 Ninth Circuit Rule 36-3.