United States v. Salazar-Dimas

37 F. App'x 897

Opinion

MEMORANDUM

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Victor Salazar-Dimas appeals his guilty-plea conviction and 77-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

We review de novo whether the district court adequately established a factual basis for a defendant’s guilty plea. United States v. Gaither, 245 F.3d 1064, 1068 (9th Cir.2001).

Salazar-Dimas contends that the district court violated Fed.R.Crim.P. 11(f) for failing to establish a sufficient factual basis for his guilty plea. He is wrong. The uncontested factual summary in the presentence report and the plea colloquy constitute a sufficient factual basis to support his plea. See Fed.R.Crim.P. 11(f); see also United States v. Alber, 56 F.3d 1106, 1110 (9th Cir.1995) (“To establish a factual basis for the plea, the court may consider all of the evidence before it at the time of judgment.”); United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir.1983) (recognizing that Rule 11 prescribes no specific method of establishing the factual basis so long as sufficient evidence on the record supports the conclusion that the defendant is guilty). Accordingly, the district court did not err by finding that an adequate factual basis supported Salazar-Dimas’s guilty plea.

Salazar-Dimas further contends that the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that a prior aggravated felony conviction used to enhance a sentence for illegal reentry need not be charged in an indictment nor proved to a jury beyond a reasonable doubt). As Salazar-Dimas concedes, we have addressed and rejected this contention. See United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

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.