United States v. Roman-Gutierrez

46 F. App'x 518

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 18, 2002
• Docket: No. 01-10618; D.C. No. CR-01-00081-HDM
• Status: Published

Opinion

MEMORANDUM

**

Eduardo Roman-Gutierrez appeals his conviction and 70-month sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326. He contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court deprived him of due process by imposing a sentence greater than Section 1326(a)’s two-year maximum based on Roman-Gutierrez’s prior aggravated felony, where he did not admit to having previously committed an aggravated felony. He also contends that the district court erred in imposing a 16-level enhancement to his sentence because his 1994 assault conviction was not considered an aggravated felony for purposes of 8 U.S.C. § 1326(b)(2) at the time of its commission.

Roman-Gutierrez, who states that he presents the issues merely to preserve them in the event of ensuing favorable Supreme Court precedent, acknowledges that his arguments are foreclosed by 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), and United States v. Maria-Gonzalez, 268 F.3d 664, 669 (9th Cir.2001), cert, denied, — U.S. -, 122 S.Ct. 1382, 152 L.Ed.2d 373 (2002).

Accordingly, the judgment and sentence are

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.