United States v. Moya-Avila

15 F. App'x 483

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2001
• Docket: No. 00-50185; D.C. No. CR-99-1017-SVW
• Status: Published

Opinion

MEMORANDUM

**

Elio Moya-Avila appeals the judgment of conviction and 87-month sentence imposed after his guilty plea to being an illegal alien found in the United States following deportation, in violation of 8 . Relying on Apprendi v. New Jersey, 530. U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Moya-Avila contends that the district court improperly imposed a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) because the government neither pled in the indictment nor established through the guilty plea that Moya-Avila had been deported subsequent to a prior conviction for an aggravated felony. He further contends that Apprendi calls into question the continuing validity of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). These arguments are foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000). United States v. Castillo-Rivera, 244 F.3d 1020, 2001 WL 287046 (9th Cir. March 26, 2001).

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.