United States v. Bernal-Mendoza

5 F. App'x 752

Opinion

MEMORANDUM

Footnotes

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Because Bernal-Mendoza’s prior burglary conviction is an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), the district court did not err in enhancing his sentence pursuant to U.S.S.G. § 2L1.2(b)(l)(A). The charging and conviction documents demonstrate that the actual offense of which Bernal-Mendoza was convicted qualifies as a burglary offense. See Ye v. INS, 214 F.3d 1128, 1132 (9th Cir.2000) (defining “burglary” as “the unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime”).

The PSR is sufficient proof of BernalMendoza’s prior conviction because he did not challenge the factual basis for the sentencing enhancement. See United States v. Romero-Rendon, 220 F.3d 1159, 1165 (9th Cir.), cert. denied — U.S.-, 121 S.Ct. 640, 148 L.Ed.2d 546 (2000); see also United States v. Munoz, 233 F.3d 1117, 1127 (9th Cir.2000) (citing Romero-Rendon, 220 F.3d 1159). Moreover, the district court also considered the relevant charging and conviction documents.

Finally, we recently affirmed that a prior aggravated felony conviction is a sentencing factor and need not be alleged in the indictment or proved beyond a reasonable doubt. See United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.2000), amended (Feb.8, 2001); see also Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The district court properly considered Bernal-Mendoza’s prior conviction in sentencing him to 84 months in custody.

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 9th Cir. R. 36-3.