United States v. Flores-Carmona

63 F. App'x 356

Opinion

MEMORANDUM

Footnotes

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Pedro Flores-Carmona appeals his conviction pursuant to guilty plea and his 78-month sentence for unlawful reentry by a deported, removed and/or excluded alien in violation of 8 U.S.C. § 1326. We affirm.

Flores-Carmona contends that he cannot be subjected to a sentencing enhancement under 8 U.S.C. § 1326(b) because that statute applies to aliens who have been removed, and not to aliens who have been excluded, as Flores-Carmona was. This contention lacks merit because we have held that there is no legally significant distinction between “deportation,” “exclusion” and “removal” for purposes of the crime defined by 8 U.S.C. § 1326(a) and the enhancement under section 1326(b). United States v. Luna-Madellaga, 315 F.3d 1224, 1225 fn. 2 (9th Cir.2003); United States v. Lopez-Gonzalez, 183 F.3d 933, 934-35 (9th Cir.1999).

Flores-Carmona also contends that the district court violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because 8 U.S.C. § 1326(b) describes a separate crime from subsection (a), and must be pled in the indictment. As he acknowledges, this issue has been foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.2000), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

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.