United States v. Bojorquez-Bracamontes

14 F. App'x 991

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 31, 2001
• Docket: No. 00-50766; D.C. No. CR-00-02212-IEG
• Status: Published

Opinion

MEMORANDUM²

Manuel Bojorquez-Bracamontes appeals the 41-month sentence imposed following his guilty plea to attempted entry after deportation. Bojorquez-Bracamontes contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred in imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) based upon a prior felony to which he did not admit at his change of plea hearing, and which was not submitted to a jury and proven beyond a reasonable doubt. He also contends that § 1326(b) is unconstitutional in light of Apprendi, and that Apprendi renders inapplicable Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that 8 U.S.C. § 1326(b)(2) is a sentencing factor and not a separate offense), because he did not admit to an aggravated felony at his sentencing hearing. His arguments are foreclosed by this court’s recent decision in United States v. P ache co-Zepeda, 234 F.3d 411 (9th Cir. 2000), as amended (Feb. 8, 2001). United States v. Castillo-Rivera, 244 F.3d 1020, 1024-25 (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.