United States v. Sandoval-Rivas

109 F. App'x 854

Opinion

MEMORANDUM

**

Eleazar Sandoval-Rivas appeals his jury conviction and sentence for being an alien found in the United States after deportation in violation of 8 U.S.C. § 1326.

Sandoval-Rivas contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the judgment should be reversed because the “fact” that the defendant’s deportation was subsequent to a conviction of an aggravated felony, which subjected him to an enhanced maximum term of imprisonment of twenty years under 8 U.S.C. § 1326(b)(2), as amended, was not charged in the indictment and proven to the jury beyond a reasonable doubt.

This contention is foreclosed by United States v. Castillo-Rivera, 244 F.3d 1020, 1024-25 (9th Cir.2001) (explaining that Apprendi carved out a recidivism exception under which neither the prior conviction nor the fact that the removal was subsequent to the prior conviction must be proved to a jury), and United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004) (order denying petition for rehearing and rehearing en banc) (observing that the Supreme Court in Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), preserved its prior holding in Apprendi and Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that a sentencing enhancement based on a defendant’s prior conviction does not have to be presented to a jury).

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.