United States v. Ruelas-Arreguin

19 F. App'x 632

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 21, 2001
• Docket: No. 00-50761; D.C. No. CR-98-021000-NAJ
• Status: Published

Opinion

MEMORANDUM²

Andres Ruelas-Arreguin appeals his 57-month sentence imposed following a jury-trial and conviction for illegal reentry of a previously deported alien, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Ruelas-Arreguin challenges his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), contending that: (1) 8 U.S.C. § 1326 is unconstitutional because it allows a sentence enhancement beyond the statutory maximum based on a fact not submitted to a jury; (2) Apprendi overruled the holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) that a sentence may be enhanced based on a prior conviction without submitting that issue to a jury; and (3) Apprendi limits Almendarez-Torres to its facts and precludes its application where a defendant exercises his right to a jury trial. These contentions are foreclosed by this court’s decision in United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (on de novo review, holding that Apprendi did not overrule Almendarez-Torres). See United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.), cert. denied, — U.S.-, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) (same, reviewing for plain error).

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.