United States v. Figueroa-Garcia

10 F. App'x 569

Opinion

MEMORANDUM²

Javier Figueroa-Garcia appeals the 84-month sentence imposed following his guilty plea to illegal reentry following deportation in violation of 8 U.S.C. § 1326. Figueroa-Garcia contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court improperly imposed a sentence that exceeds 8 U.S.C. § 1326(a)’s two-year statutory maximum based upon a finding that Figueroa-Garcia had been deported subsequent to having been convicted of an aggravated felony, when an aggravated felony had not been alleged in the indictment, proved beyond a reasonable doubt, or established during the plea hearing by Figueroa-Garcia’s admission. Figueroa-Garcia also contends that 8 U.S.C. § 1326(b), as construed by the Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is unconstitutional on its face after Apprendi because it permits the statutory maximum set forth in subsection (a) to be increased based upon enhancement facts that are not afforded the due process protection of offense elements. These contentions are foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), cert. denied — U.S. —, 121 S.Ct. 1503, — L.Ed.2d — (2001).³

AFFIRMED.

2

. 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 9th Cir. R. 36-3.

3

. Figueroa-Garcia’s motion to stay this appeal pending resolution of certiorari in Pacheco-Zepeda is DENIED as moot. See Pacheco-Zepeda v. United States, - U.S. -, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) (denying certiorari).