United States v. Cruz-Rodriguez

163 F. App'x 555

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 17, 2006
• Docket: No. 05-10410; D.C. No. CR-04-00104-KJD
• Status: Published

Opinion

MEMORANDUM

**

Jorge Cruz-Rodriguez appeals the 52-month sentence imposed following his guilty plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C. § 3742(a), and we affirm.

Cruz-Rodriguez, sentenced under advisory guidelines in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. , 160 L.Ed.2d 621 (2005), contends that under the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court violated his Sixth Amendment rights by imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) based on a prior felony drug trafficking conviction that was neither proved to a jury nor admitted during the plea colloquy. This contention is foreclosed. See, e.g., United States v. Brown, 417 F.3d 1077, 1078-79 (9th Cir.2005) (noting that Booker did not change the rule that Apprendi carves out an exception for proving the fact of a prior conviction); United States v. Moreno-Hernandez, 419 F.3d 906, 914 n. 8 (9th Cir.2005) (stating that a sentence enhancement based on the fact of a prior conviction “does not raise any Sixth Amendment problems” post-Booker).

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 9th Cir. R. 36-3.