United States v. Jorge-Carlos

Second Circuit

United States v. Jorge-Carlos

9 F. App'x 63

CourtCourt of Appeals for the Second Circuit

DecidedMay 15, 2001

DocketNo. 00-1684

StatusPublished

This text of 9 F. App'x 63 (United States v. Jorge-Carlos) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Jorge-Carlos, 9 F. App'x 63 (2d Cir. 2001).

Pincite

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of [64]*64said District Court be and it hereby is AFFIRMED.

On June 13, 2000, defendant Julio Ceasar Jorge-Carlos pleaded guilty to a single-count indictment charging him, as an alien, with unlawfully reentering the United States wdthout permission of the United States Attorney General, after having been deported, in violation of 8 U.S.C. §§ 1326(a) and (b). On October 10, 2000, pursuant to § 1326(b), the District Court sentenced defendant principally to 70 months’ imprisonment based on its finding that defendant had committed an aggravated felony prior to his deportation. On appeal, defendant argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the District Court erred in sentencing him above the two-year statutory maximum provided by § 1326(a) since neither his indictment nor his plea allocution made mention of his prior conviction for an aggravated felony. He contends that, after Apprendi, § 1326(b) sets out a separate offense that must be charged in the indictment and proved beyond a reasonable doubt.

We find defendant’s argument to be without merit since, as defendant concedes on appeal, we are bound to follow the Supreme Court’s decision in 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 with respect to § 1326(a). The Apprendi Court recognized Almendarez-Torres as a “narrow exception to [a] general rule,” Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 2362, 147 L.Ed.2d 435, in holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” id. at 2362-63 (emphasis added).

For the reasons set forth above, the judgment of the District Court is hereby AFFIRMED.

Free access — add to your briefcase to read the full text and ask questions with AI

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of [64]*64said District Court be and it hereby is AFFIRMED.

On June 13, 2000, defendant Julio Ceasar Jorge-Carlos pleaded guilty to a single-count indictment charging him, as an alien, with unlawfully reentering the United States wdthout permission of the United States Attorney General, after having been deported, in violation of 8 U.S.C. §§ 1326(a) and (b). On October 10, 2000, pursuant to § 1326(b), the District Court sentenced defendant principally to 70 months’ imprisonment based on its finding that defendant had committed an aggravated felony prior to his deportation. On appeal, defendant argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the District Court erred in sentencing him above the two-year statutory maximum provided by § 1326(a) since neither his indictment nor his plea allocution made mention of his prior conviction for an aggravated felony. He contends that, after Apprendi, § 1326(b) sets out a separate offense that must be charged in the indictment and proved beyond a reasonable doubt.

We find defendant’s argument to be without merit since, as defendant concedes on appeal, we are bound to follow the Supreme Court’s decision in 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 with respect to § 1326(a). The Apprendi Court recognized Almendarez-Torres as a “narrow exception to [a] general rule,” Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 2362, 147 L.Ed.2d 435, in holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” id. at 2362-63 (emphasis added).

For the reasons set forth above, the judgment of the District Court is hereby AFFIRMED.

Cite This Page — Counsel Stack

Bluebook (online)

9 F. App'x 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jorge-carlos-ca2-2001.

Opinion

Related

Cite This Page — Counsel Stack