United States v. Escobar-Hernandez

21 F. App'x 788

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2001
• Docket: No. 01-10030; D.C. No. CR-00-00078-ACK
• Status: Published

Opinion

MEMORANDUM

**

Cesar Escobar-Hernandez appeals from his sentence following his guilty plea conviction for re-entry after deportation, in violation of 8 U.S.C. § 1326.

Escobar-Hernandez contends that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires a remand to the district court because a prior aggravated felony conviction should be a fact determined by a jury and proven beyond a reasonable doubt. Escobar-Hernandez acknowledges that this issue is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) and raises the issue solely in order to preserve it in the event the Supreme Court decides differently in the future. Thus, we do not consider it further.

AFFIRMED.

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