United States v. Ojeda-Agundez

18 F. App'x 533

Opinion

MEMORANDUM

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Raymond Ojeda-Agundez appeals his conviction and 46 month sentence imposed following entry of a guilty plea to being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C. § 1291, and we affirm.

Ojeda-Agundez contends that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and requires that his sentence be remanded for re-sentencing to a term of no more than two-years incarceration because the indictment did not charge, Ojeda did not admit, and the court did not find beyond a reasonable doubt the fact that he was previously convicted of an aggravated felony prior to his deportation in 1998.

This claim is foreclosed in light of our decision in United States v. Pacheco-Zepeda, 234 F.3d 411, (9th Cir.), cert. denied, — U.S. -, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001), where we explicitly concluded that Almendarez-Torres survived Apprendi and rejected the argument raised by Ojeda-Agundez. Id. at 414-15 (concluding that “nowhere does Apprendi limit Almendarez-Torres” and affirming that all prior convictions “may continue to be treated as sentencing factors”).

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.