United States v. Hernandez-Bautista

11 F. App'x 711

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2001
• Docket: No. 00-10130; D.C. No. CR 99-110-DWH
• Status: Published

Opinion

MEMORANDUM²

Raul Hernandez-Bautista appeals the judgment of conviction and his 46 month sentence following his guilty plea to a single count of being a deported alien found in the U.S. in violation of 8 U.S.C. § 1326. Hernandez-B autista 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 erred by imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) on the basis of prior convictions for aggravated felonies that were not charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt. Hernandez-Bautista also contends that Apprendi renders inapplicable Almendarez-Torre s v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that 8 U.S.C. § 1326(b)(2) is a sentencing factor and not a separate offense). These arguments are foreclosed by this court’s recent decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), amended (Feb. 8, 2001).

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.