United States v. Juarez-Tafoya

7 F. App'x 599

Opinion

MEMORANDUM²

Ramiro Juarez-Tafoya appeals his conviction and 53-month sentence imposed following his guilty plea to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Juarez-Tafoya’s sole contention³ is that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) limits his sentence to the two year maximum of 8 U.S.C. § 1326(a), because his prior aggravated felony convictions were neither charged and proven beyond a reasonable doubt, nor expressly admitted.

As defendant acknowledges, we have previously rejected this contention in United States v. Pacheco-Zepeda, 234 F.3d 411, 413-15 (9th Cir.2000), amended (Feb. 8, 2001). That decision controls here.

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.

3 . Initially, counsel for Juarez-Tafoya filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there were no arguable issues for review and moving to withdraw as counsel of record. Juarez-Tafoya filed a pro se supplemental brief asserting ineffective assistance of trial counsel, which is an issue we do not ordinarily address on direct appeal. United States v. Hoslett, 998 F.2d 648, 660 (9th Cir.1993) (deferring the issue until the filing of a 28 U.S.C. § 2255 motion). On defense motion, the Anders brief was stricken, and a brief raising Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) was substituted. Apprendi is therefore the only claim at issue on appeal, and we do not address the issue of ineffective assistance of counsel.