United States v. Meza-Ponce

47 F. App'x 437

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 16, 2002
• Docket: No. 01-10593; D.C. No. CR-01-00017-HDM
• Status: Published

Opinion

MEMORANDUM

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Sergio Meza-Ponce appeals the 46-month sentence imposed following his guilty plea conviction for unlawful reentry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review de novo a challenge to the sufficiency of the indictment. United States v. Neill, 166 F.3d 943, 947 (9th Cir.1999). “Whether the district court violated the constitutional rule expressed in Apprendi is a question of law we review de novo.” United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001), cert. denied, — U.S.-, 122 S.Ct. 1450, 152 L.Ed.2d 392 (2002). We affirm.

Meza-Ponce contends that the sentencing enhancement under section 1326(b) applies to aliens who have been removed, but not aliens who have been deported, excluded, denied admission or voluntarily departed. Therefore, the enhancement cannot apply to him because his indictment only alleged that he had been “deported.” This contention lacks merit because we have held that there is no legally significant distinction between “deportation” and “removal” for purposes of the crime defined by 8 U.S.C. § 1326(a) and the enhancement under section 1326(b). See United States v. Lopez-Gonzalez, 183 F.3d 933, 934-35 (9th Cir.1999).

Meza-Ponce’s contention that the district court violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because 8 U.S.C. § 1326(b) describes a separate crime from subsection (a) is foreclosed by Arellano-Rivera, 244 F.3d at 1127 (holding that Apprendi did not overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)).

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.