United States v. Lozano-Hernandez

4 F. App'x 450

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2001
• Docket: No. 99-50453; D.C. No. CR-98-01162-ER-1
• Status: Published

Opinion

MEMORANDUM²

Manuel Salvador Lozano-Hernandez appeals his 51-month sentence imposed following a guilty plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Lozano-Hernandez contends that the district court erred by enhancing his sentence pursuant to U.S.S.G. § 2L1.2 for a prior aggravated felony which was neither charged in the indictment nor admitted at his plea, but which increased his sentence above the applicable statutory maximum penalty, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Lozano-Hernandez’s contention is foreclosed by our decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000) (concluding that Apprendi preserves the rule in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that prior convictions are sentencing factors and need not be charged in the indictment, admitted on the record, or proved beyond a reasonable doubt.)³

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 9 th Cir. R. 36-3.

3 . Although, due to an erroneous docket entry, the United States technically did not have the opportunity to respond to defendant’s Opening Brief, we deny as moot the United States’ request to file a brief.