United States v. Ochoa-Ceja

32 F. App'x 486

Opinion

MEMORANDUM

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Jose Ochoa-Ceja appeals his conviction and 46-month sentence following a bench trial in which Ochoa-Ceja stipulated to the elements of unlawful reentry and was found guilty of violating 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Ochoa-Ceja contends that 8 U.S.C. § 1326(b) is unconstitutional and violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because it increases the statutory maximum penalty based on a prior conviction of an aggravated felony as a sentencing factor rather than an element of the crime. We review Ochoa-Ceja’s constitutional challenge de novo, see United States v. LaraAceves, 183 F.3d 1007, 1009 (9th Cir.1999), overruled on other grounds by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001) (en banc).

We reject Ochoa-Ceja’s contention because it is foreclosed by our decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) (concluding that Apprendi did not overrule the holding in United States v. Almendarez-Torres, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that 8 U.S.C. § 1326(b)(2) is constitutional and does not violate due process because prior convictions are properly considered as sentencing factors, not elements of the offense).

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.