United States v. Hernandez-Diaz

22 F. App'x 895

Opinion

MEMORANDUM

Footnotes

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Larry Manuel Hernandez-Diaz appeals his 72-month sentence, imposed after pleading guilty to being an illegal alien and previously-convicted felon found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Hernandez-Diaz contends that, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), 8 U.S.C. § 1326(b) describes a separate crime from subsection (a), as opposed to a sentencing factor. He further contends that the sentencing enhancement under § 1326(b) is limited to those aliens who have been removed, as opposed to deported, excluded, denied admission or voluntarily departed, and cannot apply to him because the indictment only alleged that he had been “deported.”

Hernandez-Diaz’s contentions are unpersu'asive, because we have already determined that Apprendi did not overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that § 1326(b)(2) describes sentencing factor and is not an element of § 1326 offense). See also United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (examining IIRIRA amendments to 8 U.S.C. § 1326); United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.2000), cert. denied, — U.S.-, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) (same, reviewing for plain error).

We have also previously concluded that there is no legally significant distinction between “deportation” and “removal” for purposes of the crime defined by § 1326(a) and the enhancement under § 1326(b). United States v. Lopez-Gonzalez, 183 F.3d 933, 934-35 (9th Cir.1999), cert. denied, 528 U.S. 1126, 120 S.Ct. 957, 145 L.Ed.2d 830 (2000).

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 9th Cir. R. 36-3.