United States v. Suarez-Rocha

27 F. App'x 812

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2001
• Docket: No. 01-10207; D.C. No. CR-00-00290-HDM/RJJ
• Status: Published

Opinion

MEMORANDUM

**

Eduardo Suarez-Rocha appeals the 64-month sentence imposed following his guilty plea to unlawful reentry of a deported alien after conviction in violation of 8 U.S.C. § 1326. Suarez-Rocha contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred in imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) based upon a prior felony which was not pled in the indictment, to which he did not admit at his change of plea hearing, and which was not submitted to a jury and proven beyond a reasonable doubt. Suarez-Rocha is correct that this court has specifically rejected the contention that Apprendi has overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that 8 U.S.C. § 1326(b)(2) is a sentencing factor and not a separate offense). Suarez-Rocha’s arguments are foreclosed under United States v. Pacheco-Zepeda, 234 F.3d 411 (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.