United States v. Zamudio-Orozco

17 F. App'x 509

Opinion

MEMORANDUM

Footnotes

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Miguel Zamudio-Orozco appeals his 51-month sentence imposed after having been convicted in a jury trial on a single count of being an alien in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

Because Zamudio-Orozco did not challenge the prior aggravated felony convictions used to enhance his sentence nor object to the indictment, we review his claims for plain error. United States v. Pacheco-Zepeda, 234 F.3d 411, 413 (9th Cir.2001).

At sentencing, the district court increased Zamudio-Orozco’s offense level pursuant to U.S.S.G. § 2L1.2(b)(l)(A), which authorizes a 16-level increase where “the defendant previously was deported after a criminal conviction [and] the conviction was for an aggravated felony.” Information in Zamudio-Orozco’s presentence report (“PSR”) stated that he had two prior aggravated felony convictions, one in 1988 and one in 1993, both for delivery of a controlled substance. Relying on Apprendi v. New Jersey, 530 U.S. 466, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Zamudio-Orozco maintains that the district court erred by imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) on the basis that neither of the prior convictions were charged in the indictment, submitted to the jury, and proved beyond a reasonable doubt. The Supreme Court in Apprendi stated, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 120 S.Ct. at 2362-63. Zamudio-Orozco contends that Apprendi renders inapplicable Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that 8 U.S.C. § 1326(b)(2) — the subsection which increases the penalty for previous deportation following conviction of an aggravated felony — is a penalty provision for recidivist behavior and does not define a separate offense. Therefore, a prior conviction is the only factor that increases a penalty beyond the statutory maximum that need not be submitted to a jury. See Jones v. United States, 526 U.S. 227, 248, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Zamudio-Orozco’s argument is foreclosed by this court’s decision in Pacheco-Zepeda, which held that Apprendi did not overrule Al-mendarez-Torres, and found that the government is not required to included prior aggravated felony convictions in the indictment, submit them to a jury, or prove them beyond a reasonable doubt when used as the basis for a sentencing enhancement under 8 U.S.C. § 1326(b)(2). 234 F.3d at 415.

In addition, Zamudio-Orozco’s argument that the PSR, uncontroverted by any other evidence, is insufficient to prove a prior conviction, has been addressed and rejected by this court in United States v. Romero-Rendon, 220 F.3d 1159, 1163 (9th Cir.2000) (holding that the PSR alone provides clear and convincing evidence of the previous conviction for aggravated felony where the defendant has been convicted under 8 U.S.C. § 1326 with a sentencing enhancement under U.S.S.G. § 2L1.2(b)(l)(A)).

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.