United States v. Cruz-Martinez

51 F. App'x 691

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2002
• Docket: No. 02-10125; D.C. No. CR-01-00326-LRH
• Status: Published

Opinion

MEMORANDUM

**

Fortunato Cruz-Martinez appeals his conviction and 46-month sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326. He contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court deprived him of due process by imposing a sentence greater than Section 1326(a)’s two-year maximum based on Cruz-Martinez’s prior aggravated felony, where he did not admit to having previously committed an aggravated felony.

Cruz-Martinez states that he presents the issue merely to preserve it in the event of ensuing favorable Supreme Court precedent, and acknowledges that his argument is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.), cert, denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) and United States v. Arellano-Rivera, 244 F.3d 1119, 1126-27 (9th Cir.2001).

Accordingly, the judgment and sentence are

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.