United States v. Ochoa-Ceja

32 F. App'x 486

Opinion

MEMORANDUM **

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 convic tions are properly considered as sentencing factors, not elements of the offense).

AFFIRMED.

Footnotes

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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.