United States v. Lucena

10 F. App'x 572

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 30, 2001
• Docket: No. 00-10490; D.C. No. CR-00-00044-JSU
• Status: Published

Opinion

MEMORANDUM

**

Albert Borja Lucena appeals his conviction and 288-month sentence imposed following a jury trial conviction for being an ex-felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Lucena contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, (2000), the district court erred by enhancing his sentence under the Armed Career Criminal Act and 18 U.S.C. § 924(e) for having three prior convictions for violent felonies, when the fact of those prior convictions were neither charged in the indictment, nor proven beyond a reasonable doubt at trial. Because Lucena failed to object to the use of the priors to enhance his sentence, we review for plain error. See United States v. Pacheco-Zepeda, 234 F.3d 411, 413 (9th Cir.), amended Feb. 8, 2001, cert. denied, — U.S. —, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

Lucena’s claim is without merit. Apprendi created an exception for prior convictions holding that “other 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., 530 U.S. 466, 120 S.Ct. at 2362-63; see also Jones v. United States, 526 U.S. 227, 248, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Almendarez-Torres v. United States, 523 U.S. 224, 239, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); Pacheco-Zepeda, 234 F.3d at 413-414.

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 9th Cir. R. 36-3.