United States v. Echavarria-Luna

56 F. App'x 385

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 19, 2003
• Docket: No. 02-50268; D.C. No. CR-01-00036-VAP-01
• Status: Published

Opinion

MEMORANDUM

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Alfred Echavarria-Luna appeals the 70-month sentence imposed following his guilty plea conviction for one count of illegally reentering the United States following deportation, in violation of 8 U.S.C. § 1326.

We lack jurisdiction to review the district court’s discretionary denial of a downward departure for lost opportunity to serve concurrent sentences and therefore dismiss that portion of Echavarria-Luna’s appeal. See United States v. Romero, 293 F.3d 1120,1126 (9th Cir.2002).

We have jurisdiction under 18 U.S.C. § 3742 to consider the remainder of his appeal. We affirm in part, and remand in part.

Echavarria-Luna’s contention that Ap-prendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), prohibited the district court from sentencing him to more than two years based upon convictions not listed in the indictment or proved before a jury is foreclosed by United States v. Pacheco-Zapeda, 234 F.3d 411, 413-14 (9th Cir.2001).

The parties agree that the written judgment was inconsistent with the oral imposition of a two-year period of supervised release. See United States v. Hicks, 997 F.2d 594, 597 (9th Cir.1993). Accordingly, we remand so that the district court can make the written judgment consistent with the oral pronouncement. See id.

DISMISSED in part, AFFIRMED in part, and REMANDED in part.

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.