United States v. Benavides-Gutierrez

51 F. App'x 742

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 27, 2002
• Docket: No. 02-10228; D.C. No. CR-01-00154-ECR/VPC
• Status: Published

Opinion

MEMORANDUM

**

Evelia Benavides-Gutierrez appeals her conviction by guilty plea and sentence for unlawful re-entry by a deported, removed and/or excluded alien in violation of 8 U.S.C. § 1326(a). As Benavides-Gutierrez concedes, Ninth Circuit precedent forecloses her argument that imposition of a sentence in excess of Section 1326(a)’s two-year maximum, without proof beyond a reasonable doubt of the removal and preremoval aggravated felony conviction, violates due process under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000) (concluding that Apprendi’s recidivism exception specifically preserved the holding of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that the prior conviction need not be pled in the indictment or proved beyond a reasonable doubt); 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). The judgment is therefore

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.