United States v. Solis-Carrera

17 F. App'x 597

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2001
• Docket: No. 00-10582; D.C. No. CR-00-00033-DWH(RAM)
• Status: Published

Opinion

MEMORANDUM1

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As the government concedes, the district court erred in entering a judgment reflecting that defendant was convicted of both 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2). On remand the district court shall correct the judgment to reflect conviction of only the former offense.

The district court did not abuse its discretion in sentencing defendant consecutively. See United States v. Warren, 980 F.2d 1300, 1306 (9th Cir.1992), cert. denied, 510 U.S. 950, 114 S.Ct. 397, 126 L.Ed.2d 344 (1993); U.S. Sentencing Guidelines Manual § 5G1.3(c). The two-point downward departure accounted for the time defendant served on his state sentence.

Nor did the district court err in failing to submit defendant’s sentence enhancement to the jury. Defendant’s prior felony conviction is a sentencing factor, not a separate criminal offense requiring jury deliberation. Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000), amended on grant of reh’g (Feb. 8, 2001), cert. denied, — U.S. —, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

AFFIRMED IN PART; REVERSED IN PART.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.