United States v. Caballero-Perez

19 F. App'x 587

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 20, 2001
• Docket: No. 00-30291; D.C. No. CR-00-80-RHW
• Status: Published

Opinion

MEMORANDUM

**

Refugio Caballero-Perez appeals the judgment of conviction and 57-month sentence following his guilty plea to being an alien found in the United States after deportation in violation of 8 U.S.C. § 1326. We affirm.

Caballero-Perez 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), because he did not admit to an aggravated felony following deportation at his plea hearing and the prior aggravated felony conviction was not proven beyond a reasonable doubt. Caballero-Perez acknowledges that this issue 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) and raises the issue solely in order to preserve it in the event the Supreme Court decides differently in the future. Thus, we do not consider it further.

Caballero-Perez also seeks a stay of appellate proceedings pending review by a higher court. In light of the Supreme Court’s denial of certiorari in PachecoZepeda, id., no stay is necessary.

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.