United States v. Lopez-Gonzalez

27 F. App'x 825

Opinion

MEMORANDUM

Footnotes

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Federal prisoner Ruben Lopez-Gonzalez appeals the district court’s denial of his 28 U.S.C. § 2255 habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253, review de novo, see United States v. Cha- con-Palomares, 208 F.3d 1157, 1158 (9th Cir.2000), and affirm.

Lopez-Gonzalez contends that the general rule pronounced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is retroactively applicable to collateral proceedings, that Apprendi overruled or limited Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and, therefore, that his sentence is unconstitutional because his prior aggravated felony conviction was not stated in the indictment, submitted to a jury, and proven beyond a reasonable doubt.

Without deciding whether Apprendi is retroactively applicable to collateral proceedings, we conclude Lopez-Gonzalez’s arguments are unavailing. We have previously determined that Apprendi preserves the holding in Almendarez-Torres that prior convictions are sentencing factors, not elements of the offense that need to submitted to a jury and proven beyond a reasonable doubt. United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001). Furthermore, in Pacheco-Zepeda, we concluded that this rule is not limited to cases where a defendant admits a prior conviction on the record. Id. Accordingly, the district court properly denied Lopez-Gonzalez’s petition.

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 Ninth Circuit Rule 36-3.