United States v. Palencia-Ramirez

54 F. App'x 670

Opinion

MEMORANDUM

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Jose De Jesus Palencia-Ramirez appeals his 37-month sentence following his guilty-plea conviction to illegally re-entering the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

Palencia-Ramirez’ contention that he is subject only to the two-year penalty under 8 U.S.C. § 1326(a) because government did not plead an aggravated felony in the indictment is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.2001) (concluding 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), and did not limit Almendarez-Torres to cases where a defendant admits prior aggravated felony convictions on the record).

Palencia-Ramirez’ other contention, that the district court erred by enhancing his offense level by 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(l)(A), on the basis of an aggravated felony which he committed prior to a deportation not alleged in the indictment, is also foreclosed by Pacheco-Zepeda. See Pacheco-Zepeda, 234 F.3d at 414 (“The district court was entitled to consider any prior aggravated felony convictions in sentencing Pacheco-Zapeda for illegal reentry even though such conduct had not been charged in the indictment ____”) (emphasis added).

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.