United States v. Barajas-Serrato

10 F. App'x 575

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 30, 2001
• Docket: No. 00-10408; D.C. No. CV-00-00017-SI
• Status: Published

Opinion

MEMORANDUM²

Miguel Barajas-Serrato appeals the judgment of conviction and 40-month sentence imposed after his guilty plea to being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. Barajas-Serrato contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), section 1326(b)(2) is unconstitutional because it allows a court to increase the maximum penalty at sentencing, based on whether a defendant was deported subsequent to a prior conviction for an aggravated felony, without submitting this fact to a jury for proof beyond a reasonable doubt. This contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (upholding enhancement where the defendant admitted to underlying felony convictions and subsequent deportation) and by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), as amended (Feb. 8, 2001), cert. denied, — U.S. —, 121 S.Ct. 1503, — L.Ed.2d — (2001). See United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir.2001).

AFFIRMED.

2 . 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.