United States v. Peralta-Moran

8 F. App'x 668

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 18, 2001
• Docket: No. 00-30031; D.C. No. CR-99-30055-1-MRH
• Status: Published

Opinion

MEMORANDUM²

Ezequiel Peralta-Moran appeals the 77-month sentence following a guilty plea conviction for being found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Medina-Arias contends that the district court erred by enhancing his sentence above the applicable statutory maximum penalty, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), on the basis that his prior aggravated felony convictions were neither charged in the indictment nor admitted at his plea. Medina-Arias’ contention, however, is foreclosed by our decision in United States v. Pacheco-Zepeda, No. 99-50720 (9th Cir.) (concluding that Apprendi preserves the rule in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that prior convictions are sentencing factors and not elements of the offense), cert. denied, — U.S. -, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) (No. 00-8814). The district court therefore properly considered Medina-Arias’ prior aggravated felony convictions in sentencing him. See Pacheco-Zepeda, 2000 WL 33156290, at *5.

AFFIRMED.

2 . 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.