United States v. Ochoa-Gaytan

52 F. App'x 65

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2002
• Docket: No. 02-50115; D.C. No. CR-98-02750-JNK
• Status: Published

Opinion

MEMORANDUM

**

Javier Ochoa-Gaytan appeals his 63-month sentence imposed on remand for resentencing after his jury trial conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C. § 3742 and U.S.C. § 1291, and we affirm.

Ochoa-Gaytan contends that the district court improperly enhanced his sentence on the basis of a prior aggravated felony conviction that was neither admitted or charged in the indictment, nor proven beyond a reasonable doubt. These arguments are foreclosed by United States v. Pacheco-Zepeda, 284 F.3d 411, 414-15 (9th Cir.2000) (holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) did not overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (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 Ninth Circuit Rule 36-3.