United States v. Cabada-Navarrete

13 F. App'x 528

Opinion

MEMORANDUM

**

Marcial Cabada-Navarrete appeals the 60-month sentence imposed by the district court following his guilty-plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Cabada-Navarrete contends that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires a remand to the district court because a prior aggravated felony conviction should be a fact determined by a jury and proven beyond a reasonable doubt. This contention is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

Cabada-Navarrete also contends that counsel was ineffective for failing to raise and preserve the Apprendi issue before the district court. However, given Pacheco-Zepeda, we reject Cabada-Navarrete’s contention because he has failed to demonstrate ineffective assistance of counsel from counsel’s failure to argue that the prior aggravated felony conviction should have been determined by a jury. See Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.1989) (concluding that failure to raise a meritless legal argument does not constitute ineffective assistance of counsel); see also United States v. Rivera-Sanchez, 222 F.3d 1057, 1060 (9th Cir.2000) (holding that where the record is sufficiently developed to permit review and determination, an ineffective assistance claim may be reviewed on direct appeal).

Cabada-Navarrete also contends that his prior drug possession convictions combined do not qualify as aggravated felony convictions for purposes of the 16-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(1999). We previously held that a second drug possession conviction qualifies as an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43). United States v. Garciar-Olmedo, 112 F.3d 399, 402 (9th Cir.1997). We conclude the district court did not err by considering Cabada-Navarrete’s prior possession convictions to increase his offense level by 16 points under U.S.S.G. § 2L1.2(b)(l)(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 9th Cir. R. 36-3.