United States v. Barrera-Flores

46 F. App'x 557

Opinion

MEMORANDUM

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Fidal Barrera-Flores appeals his guilty plea conviction and 57-month sentence for unlawful reentry of a deported, removed, and/or excluded alien in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, we review for plain error, and we affirm. See United States v. Vonn, 294 F.3d 1093, 1093-94 (9th Cir.2002) (order).

Barrera-Flores contends that the district court erred in sentencing him pursuant to 8 U.S.C. § 1326(b)(2) because the subsection only applies to “removed,” not “deported,” aliens. Barrera-Flores contends that because he pleaded guilty to being “deported,” the maximum penalty is two years under 8 U.S.C. § 1326(a)(1). This contention fails. See United States v. Lopez-Gonzalez, 183 F.3d 933, 935 (9th Cir.1999) (concluding that “any distinction between deportation and removal is legally insignificant for purposes of § 1326”).

In addition, Barrera-Flores contends that congressional changes to § 1326(b)(2) created a separate crime for which “removal” must be pleaded and proved beyond a reasonable doubt pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This contention also fails. See United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.), cert, denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) (holding that § 1326(b)(2) as amended does not define a separate crime from § 1326(a)).

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.