United States v. Cervantes-Morales

10 F. App'x 571

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 30, 2001
• Docket: No. 00-10536; D.C. No. CR-00-01019-ACM
• Status: Published

Opinion

MEMORANDUM²

Sergio Ivan Cervantes-Morales appeals the judgment of conviction and 37-month sentence imposed after his guilty plea to being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. Cervantes-Morales 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 improperly imposed a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) because the government neither pled in the indictment nor established through the guilty plea that Cervantes-Morales had sustained a prior conviction for an aggravated felony. He also contends 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). These arguments are foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), as amended (Feb. 8, 2001), cert. denied, — U.S. —, 121 S.Ct. 1503, — L.Ed.2d — (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.