United States v. Jestine

17 F. App'x 59

• Court: Court of Appeals for the Second Circuit
• Decided: August 30, 2001
• Docket: No. 00-1087
• Status: Published

Opinion

SUMMARY ORDER

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

Leroy A. Jestine appeals from a judgment of conviction entered on March 7, 2000 by the United States District Court for the Southern District of New York, after Jestine pleaded guilty to one count of illegal reentry following the commission of an aggravated felony, pursuant to 8 U.S.C. §§ 1326(a) and (b)(2). Jestine asserts that the District Court committed plain error when it sentenced him to 78 months’ imprisonment because he had not allocuted to the element of § 1326(b)(2) that he was deported following commission of an aggravated felony. Accordingly, Jestine argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the District Court should have imposed a sentence not in excess of two years, pursuant to § 1326(a) only.

Jestine’s claim is without merit. This Court concluded in United States v. La-torre-Benavides, 241 F.3d 262 (2d Cir.) (per curiam), cert, denied — U.S. -, 121 S.Ct. 2013, 149 L.Ed.2d 1014 (2001), that the issue raised by Jestine is directly governed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that § 1326(b) “does not set out a separate offense but rather is a penalty provision.” Latorre-Benavides, 241 F.3d at 264. Ap-prendi v. New Jersey does not control, and we, accordingly, affirm Jestine’s conviction on the basis of Almendarez-Torres v. United States.

For the reasons stated above, the judgment of the District Court is AFFIRMED.