United States v. Chaires-Rodarte

11 F. App'x 779

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 29, 2001
• Docket: No. 99-50514; D.C. No. CR 98-00402-CAS
• Status: Published

Opinion

MEMORANDUM

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Chaires-Rodarte argues that the district court should have allowed him to withdraw his plea and his indictment should have been dismissed because the government previously agreed not to prosecute him for his 1994 illegal reentry. The district court did not clearly err in finding that Chaires-Rodarte failed to prove that there was an agreement between himself and the United States which estopped the United States from prosecuting him. Accordingly, the district court did not abuse its discretion by denying Chaires-Rodarte’s motion to withdraw his plea and dismiss the indictment.

Chaires-Rodarte also asserts, for the first time on appeal, that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred in considering his prior aggravated felony convictions during sentencing. However, Chaires-Rodarte’s argument is explicitly foreclosed by our recent decision in United States v. Pacheco-Zepeda 234 F.3d 411, 413 (9th Cir.2000), amended (Feb. 8, 2001), which considered and rejected an identical claim. See also Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Accordingly, the district court properly enhanced Chaire-Rodarte’s sentence pursuant to 8 U.S.C. § 1326(b)(2) and 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.