United States v. Gonzalez-Albanez

17 F. App'x 672

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 29, 2001
• Docket: No. 00-50445; D.C. No. CR-99-00330-CBM
• Status: Published

Opinion

MEMORANDUM

**

Carlos Alfredo Gonzalez-Albanez appeals his 41-month sentence imposed following a guilty plea to illegal reentry of a previously deported alien, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Appellant contends that because he pleaded guilty immediately after the denial of his motion to dismiss the indictment and before his trial was scheduled to begin, the district court erred by denying an extra one-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3El.l(b)(2). We review this determination for clear error. United States v. Hopper, 27 F.3d 378, 381-82 (9th Cir.1994). The district court properly denied the adjustment because Gonzalez-Albanez did not plead guilty until the morning of trial, and the government had already spent considerable time and effort preparing for trial. See id. at 385 (noting that focus is on timeliness of guilty plea, given § 3El.l(b)’s primary purpose of “promoting prosecutorial and judicial economy and efficiency”).

Gonzalez-Albanez next contends, for the first time on appeal, that his sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because the district court did not find beyond a reasonable doubt that his prior deportation was subsequent to an aggravated felony conviction. He further contends that Apprendi calls into question the continuing validity of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Both contentions are foreclosed by our recent decision in United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.), cert. denied, — U.S. —, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) (on plain error review, holding that Apprendi did not overrule the conclusion in Almenda-rez-Torres that 8 U.S.C. § 1326(b)(2) is a sentencing factor and not a separate offense); see Almendarez-Torres, 523 U.S. at 235 (recognizing risk of unfairness in requiring government to prove previous deportation was subsequent to conviction for aggravated felony, due to potential prejudice in introducing evidence of prior crimes at trial).

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 9 th Cir. R. 36-3.