United States v. Garcia-Lonzo

12 F. App'x 577

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 25, 2001
• Docket: No. 00-50208; D.C. No. CR-99-97-AHS
• Status: Published

Opinion

MEMORANDUM²

Julian Garcia-Lonzo appeals the judgment of conviction and 77-month sentence following his guilty plea to a single count of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Garcia-Lonzo contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), section 1326(b)(2) is unconstitutional because it allows a court to increase the maximum penalty at sentencing, based on whether a defendant was deported subsequent to a prior conviction for an aggravated felony, without submitting this fact to a jury for proof beyond a reasonable doubt. This contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (upholding enhancement where the defendant admitted to underlying felony convictions and subsequent deportation) and by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), as amended (Feb. 8, 2001), cert. denied, — U.S. —, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

AFFIRMED.³

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 . The motion of the United States to dismiss the appeal is denied.