United States v. Cruz-Dominguez

67 F. App'x 1000

Opinion

MEMORANDUM

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1. The government is not required to plead voluntary entry in an indictment charging a defendant with the crime of being “found in” the United States in violation of 8 U.S.C. § 1326. See United States v. Pargar-Rosas, 238 F.3d 1209, 1213-14 (9th Cir.2001). Cruz-Dominguez’s argument that United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc), implicitly overruled Parga-Rosas is without merit. The Buckland court’s ruling was made in the context of the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “questions of fact that may increase a defendant’s exposure to penalties” must be submitted to a jury. Buckland, 289 F.3d at 566. The fact of voluntary entry does not increase a defendant’s “exposure to penalties” under § 1326.

2. The Fifth Amendment does not require that a district court judge specifically instruct grand jurors that they may refuse to indict even if they find that probable cause exists to support an indictment. See United States v. Marcucci, 299 F.3d 1156, 1159, 1164 (9th Cir.2002).

3. The statute authorizing imposition of supervised release, 18 U.S.C. § 3583, does not violate Apprendi. See United States v. Liero, 298 F.3d 1175, 1178 (9th Cir.2002). The imposition of supervised release is part of the possible sentence to be imposed following conviction for a crime, and therefore does not increase the penalty for a crime beyond that authorized by the jury’s verdict. See id.

4. The district court found that Cruz-Dominguez had been convicted as an adult and thus merited an eight-level increase under U.S.S.G. § 2L1.2. The district court did not abuse its discretion in applying the Guidelines to the facts of this case. United States v. Alexander, 287 F.3d 811, 818 (9th Cir.2002).

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.