United States v. Vasquez-Cortez

Ninth Circuit

United States v. Vasquez-Cortez

32 F. App'x 263

Court of Appeals for the Ninth Circuit·Decided February 22, 2002·No. No. 01-50103; D.C. No. CR-00-00174-LEW/MLR·Published

Opinion

MEMORANDUM **

Adan Vasquez-Cortez appeals his guilty plea conviction and 57-month sentence for one count of being an illegal 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.

Vasquez-Cortez contends that the district court violated Fed.R.Crim.P. 11(c)(1) by not advising him of the specific elements and not ensuring that he understood the nature of the charge to which he was pleading guilty. Reviewing de novo, United States v. Littlejohn, 224 F.3d 960, 964 (9th Cir.2000), we conclude that the Vasquez-Cortez’s contention is unpersuasive.

[264] Review of the plea colloquy demonstrates that Vasquez-Cortez was informed of and understood the nature of the charge against him. Fed.R.Crim.P. 11(c)(1); see United States v. Aguilar-Muniz, 156 F.3d 974, 976-77 (9th Cir.1998). Therefore, the asserted error was harmless. Fed. R.Crim.P. 11(h); see United States v. Smith, 60 F.3d 595, 599 (9th Cir.1995) (quoting advisory committee notes to Fed. R.Crim.P. 11(h) (1983)).

Vasquez-Cortez also contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the existence and nature of a prior felony conviction used to enhance his sentence must be charged in the indictment and proved beyond a reasonable doubt. Vasquez-Cortez further contends that Apprendi limited Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) to its unique facts. His Apprendi contentions are foreclosed by our decisions in United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.) (applying plain error review), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) and United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (applying de novo review).

AFFIRMED.

Footnotes

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MEMORANDUM **

Adan Vasquez-Cortez appeals his guilty plea conviction and 57-month sentence for one count of being an illegal 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.

Vasquez-Cortez contends that the district court violated Fed.R.Crim.P. 11(c)(1) by not advising him of the specific elements and not ensuring that he understood the nature of the charge to which he was pleading guilty. Reviewing de novo, United States v. Littlejohn, 224 F.3d 960, 964 (9th Cir.2000), we conclude that the Vasquez-Cortez’s contention is unpersuasive.

[264] Review of the plea colloquy demonstrates that Vasquez-Cortez was informed of and understood the nature of the charge against him. Fed.R.Crim.P. 11(c)(1); see United States v. Aguilar-Muniz, 156 F.3d 974, 976-77 (9th Cir.1998). Therefore, the asserted error was harmless. Fed. R.Crim.P. 11(h); see United States v. Smith, 60 F.3d 595, 599 (9th Cir.1995) (quoting advisory committee notes to Fed. R.Crim.P. 11(h) (1983)).

Vasquez-Cortez also contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the existence and nature of a prior felony conviction used to enhance his sentence must be charged in the indictment and proved beyond a reasonable doubt. Vasquez-Cortez further contends that Apprendi limited Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) to its unique facts. His Apprendi contentions are foreclosed by our decisions in United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.) (applying plain error review), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) and United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (applying de novo review).

AFFIRMED.

Footnotes

United States v. Vasquez-Cortez, 32 F. App'x 263 (9th Cir. 2002).

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Opinion

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