United States v. Ayala-Cerda

19 F. App'x 654

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 2001
• Docket: No. 00-10214; D.C. No. CR-99-20111-JF
• Status: Published

Opinion

MEMORANDUM

**

Nicholas Ayala-Cerda was convicted of one count of illegally reentering the United States in violation of 8 U.S.C. § 1326. He was sentenced to confinement for a term of 78 months, to be followed by supervised release for a period of 3 years. AyalaCerda appeals his conviction and sentence on various grounds. The facts and prior proceedings are known to the parties, and are restated herein only as necessary.

I

Ayala-Cerda first argues that the district court erred in admitting evidence of his post-Miranda statement because it was preceded by pre-Miranda questioning that resulted in an incriminating pr e-Miranda statement. As we recently decided in United States v. Orso, 266 F.3d 1030 (9th Cir.2001) (en banc), a warned confession is not per se inadmissible simply because it was preceded by an unwarned confession. Rather, in such circumstances, the warned confession should be suppressed only if the prior unwarned confession was “involuntary, and any taint therefrom had not dissipated by the time [the defendant] was read the Miranda warnings.” Id. at 1037. In this case, there is no evidence to suggest that Ayala-Cerda’s pre-Miranda statement was involuntary.¹ Consequently, under Orso, AyalaCerda’s post-Miranda statement was admissible.

II

Ayala-Cerda next argues that he did not knowingly and voluntarily waive his right to a jury trial. Under Federal Rule of Criminal Procedure 23(a), a defendant’s waiver of his right to a jury trial must be made in writing. However, case law provides for an exception to this requirement: “where the record clearly reflects that the defendant ‘personally gave express consent in open court, intelligently and knowingly.’ ” United States v. Saadya, 750 F.2d 1419, 1420 (9th Cir.1985) (citations omitted). In this case, the court asked Ayala-Cerda multifarious questions in an effort to determine whether his waiver was knowing and intelligent. In response, Ayala-Cerda stated in open court that he understood that his right to a jury trial was constitutionally guaranteed, that he had discussed the waiver with counsel, and that he understood the practical consequences of the waiver. There can be no question that during this colloquy AyalaCerda “ ‘personally gave express consent in open court, intelligently and knowingly.’ ” See Saadya, 750 F.2d at 1420.

III

Finally, Ayala-Cerda argues that his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because it exceeded the two year statutory maximum found in 8 U.S.C. § 1326(a).² As we recently clarified, however, Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) remains good law and, therefore, forecloses AyalaCerda’s contention. Thus, “[t]he district court was entitled to consider any prior aggravated felony convictions in sentencing [the defendant] for illegal reentry even though such conduct had not been charged in the indictment, presented to a jury, and proved beyond a reasonable doubt.” United States v. Pacheco-Zepeda, 234 F.3d 411, 413 (9th Cir.2001) (finding AlmendarezTorres to be “dispositive” even after Apprendi ).

IV

For the foregoing reasons, Ayala-Cerda’s conviction and sentence are AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Likewise, there is no evidence to suggest that the post-Miranda statement was involuntary.

2 . Ayala-Cerda was charged with one count of violating 8 U.S.C. § 1326, which prohibits reentry by a deported alien. Subsection (a), for which the maximum penalty is two years, requires that (1) the defendant be an alien; (2) the defendant have been deported; and (3) the defendant reenter the U.S., without permission, after his deportation. 8 U.S.C. § 1326(a). Under subsection (b), if each of the elements of subsection (a) is satisfied, and if the defendant was previously convicted of an aggravated felony, the maximum penalty is twenty years. 8 U.S.C. § 1326(b)(2). AyalaCerda was found guilty as charged under 8 U.S.C. § 1326 and sentenced to 78 months (6.5 years).