United States v. Cruz-Ayon

117 F. App'x 577

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2004
• Docket: No. 04-10328; D.C. No. CR-03-00033-ECR
• Status: Published

Opinion

MEMORANDUM

**

Roberto Cruz-Ayon appeals the sentence imposed following his guilty plea to unlawful reentry by a deported alien in violation of 8 U.S.C. § 1326(a).

The district court imposed a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A) and 8 U.S.C. § 1326(b)(2) based on Cruz-Ayon’s deportation having been subsequent to a drug trafficking conviction that exceeded thirteen months.

Cruz-Ayon contends that after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Blakely v. Washington, - U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Ameline, 376 F.3d 967 (9th Cir.2004), this enhancement, which resulted in a sentence in excess of the two-year statutory maximum set forth in § 1326(a), violates the Sixth Amendment because necessary facts — the specific type of the offense and the temporal relationship of the offense to the deportation — were neither admitted by Cruz-Ayon nor proved to a jury beyond a reasonable doubt.

This contention lacks merit. We have continued to hold, after Apprendi, Ring, Blakely, and Ameline, that § 2L1.2(b) enhancements do not implicate the Sixth Amendment limitation on judicial factfinding. See United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004) (order) (observing that Apprendi and Blakely preserved the rule that a § 2L1.2 enhancement based on a prior conviction need not be presented to a jury). See also United States v. Castillo-Rivera, 244 F.3d 1020, 1025 (9th Cir.2001) (rejecting contention that the fact of the temporal relationship of the removal to the prior conviction is beyond the scope of Apprendi’s recidivism exception). The judgment is therefore

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.