United States v. Garcia-Rodriguez

168 F. App'x 765

Opinion

MEMORANDUM

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Jose de Jesus Garcia-Rodriguez appeals from the sentence imposed following his guilty plea conviction for being an alien found in the United States subsequent to deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing de novo, see United States v. Smith, 282 F.3d 758, 771 (9th Cir.2002), we affirm.

Garcia-Rodriguez contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the enhancement of his sentence pursuant to 8 U.S.C. § 1326(b) was unconstitutional because he did not admit the prior conviction, nor was the prior conviction proven to a jury beyond a reasonable doubt. This argument is foreclosed by the text of Apprendi itself, which expressly carves out an exception for the fact of a prior conviction, see 530 U.S. at 490, 120 S.Ct. 2348, and by the law of this circuit. See United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000); see also United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005) (stating that the Pacheco-Zepeda holding was reaffirmed following the Supreme Court decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). We therefore affirm the sentence.

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 9th Cir. R. 36-3.