United States v. Rivera-Garcia

31 F. App'x 380

Opinion

MEMORANDUM

Footnotes

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Miguel Angel Rivera-Garcia appeals his 63-month sentence following his guilty plea conviction for being an alien 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.

Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Rivera-Garcia challenges his conviction on three grounds. First, Rivera contends that 8 U.S.C. § 1326 is unconstitutional because it permits the district court to determine “sentencing factors.” Second, he contends that the district court improperly imposed a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) because the government neither pleaded in the indictment nor established through the guilty plea that Rivera-Garcia had sustained a prior aggravated felony conviction. Third, Gareia-Rivera contends that following Apprendi his case is distinguished from the specific facts and holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that 8 U.S.C. § 1326(b)(2) is a sentencing factor and not a separate offense). These arguments are foreclosed by our decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

Rivera-Garcia further contends that the district court erred by relying solely on his pre-sentence report to determine that his prior felony was sufficient to enhance his sentence pursuant to § 1326(b)(2). This contention also lacks merit because a presentence report which contains the specific statute underlying the aggravated felony on which the 16 point enhancement is based is sufficient to satisfy a preponderance of the evidence. United States v. Romero-Rendon, 220 F.3d 1159, 1161-62 (9th Cir.), cert. denied, 531 U.S. 1043, 121 S.Ct. 640, 148 L.Ed.2d 546 (2000).

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.