United States v. Zapata-Robles

22 F. App'x 919

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 2, 2002
• Docket: No. 01-50114; D.C. No. CR-98-00650-RMB
• Status: Published

Opinion

MEMORANDUM

**

Jose Domingo Zapata-Robles (“Zapata-Robles”) appeals the 87-month sentence imposed by the district court following a remand from this Court for re-sentencing. We have jurisdiction under 18 U.S.C. § 3742(a), and we affirm.

Zapata-Robles contends that pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred by imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) based upon a prior aggravated felony. He also contends 8 U.S.C. § 1326(b) is unconstitutional and cannot be applied at sentencing because it allows a sentence to be increased based upon facts which were not submitted to a jury, violating Apprendi. Zapata-Robles’s arguments however, are foreclosed by this Court’s recent decision in United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.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.