United States v. Martinez-Lomeli

2 F. App'x 842

Opinion

MEMORANDUM²

Jose Miguel Martinez-Lomeli appeals his 77-month sentence imposed following conviction by guilty plea to a single count of being 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 18 U.S .C. § 3742(a). We review de novo, United States v. Pacheco-Zepeda, 234 F.3d 411, 412-13 (9th Cir.2000), and affirm.

Martinez-Lomeli contends that the district court erred by sentencing him pursuant to 8 U.S.C. § 1326(b)(2). Specifically, he argues that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires that the fact of his prior conviction for an aggravated felony be proved beyond a reasonable doubt. We disagree.

The plain language of Apprendi excludes from its holding prior convictions, thereby preserving the specific holding of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that subsection (b)(2) constitutes a sentence enhancement and not a separate offense. Pacheco-Zepeda, at 414. The district court, therefore, properly sentenced Martinez-Lomeli pursuant to subsection (b)(2). Id. at 414.

AFFIRMED.

Footnotes

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.