United States v. Torres-Castillo

2 F. App'x 882

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 29, 2001
• Docket: No. 00-50240
• Status: Published

Opinion

MEMORANDUM²

Jose Torres-Castillo appeals his 77-month sentence imposed following his guilty plea conviction for being an alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Torres-Castillo contends that his 77-month sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the district court enhanced his sentence based on prior convictions for aggravated felonies which were not charged in the indictment or proven beyond a reasonable doubt, nor did Torres-Castillo admit the fact of his prior felony convictions. We review the question of whether Apprendi requires that Torres-Castillo be re-sentenced for plain error. See United States v. Nordby, 225 F.3d 1053, 1060 (9th Cir.2000).

Torres-Castillo’s contention is foreclosed by our ruling in United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir. 2000) (holding that under AlmendarezTorres, recidivism increasing the maximum penalty need not be charged in the indictment, submitted to a jury or proven beyond a reasonable doubt).

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.