United States v. Rios-Barboza

58 F. App'x 746

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 2003
• Docket: No. 02-10377; D.C. No. CR-02-000002-DWH
• Status: Published

Opinion

MEMORANDUM

**

Amoldo Rios-Barboza appeals his conviction by guilty plea and sentence for unlawful reentry by a deported alien, in violation of 8 U.S.C. § 1326. Rios-Barboza contends that his sentence in excess of the two-year maximum set forth in 8 U. S.C. § 1326(a) violates the due process requirement articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in that elements necessary to impose the enhanced sentence — the fact that an alien has been removed and suffered an aggravated felony before removal — were neither pled in the indictment nor proven beyond a reasonable doubt. Acknowledging that this court has rejected his argument, see United States v. Castillo-Rivera, 244 F.3d 1020, 1024-25 (9th Cir.2001) (rejecting contention that Apprendi’s recidivism exception is somehow inapplicable to an aggravated felony enhancement under § 1326 because removal must have been subsequent to an aggravated felony conviction), Rios-Barboza states that he raises the issue in order to preserve it in the event the Supreme Court overrules contrary authority-

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.