United States v. Zuniga-Gamez

97 F. App'x 186

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 18, 2004
• Docket: No. 03-10010
• Status: Published

Opinion

MEMORANDUM

**

Isac Zuniga-Gamez appeals his guilty-plea conviction and 51-month sentence for unlawful re-entry of a deported alien into the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Gamez contends that the district court plainly erred by enhancing his sentence on the basis of a prior felony drug-trafficking offense that was not alleged in the indictment and proved beyond a reasonable doubt. This contention is foreclosed by United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (“[T]he district court properly enhanced [defendant’s] offense level on the basis of prior aggravated felonies even though he did not admit to having committed them, and even though the government neither alleged them in the indictment nor proved them at trial beyond a reasonable doubt.”).

Gamez contends that the district court improperly applied a 12-level enhancement under U.S.S.G. § 2L1.2(b)(l)(B) for a prior drug-trafficking offense for which the sentence imposed was 13 months or less, because he received a suspended prison sentence with two years probation, therefore there was no “sentence imposed” of 13 months or less. This argument is not persuasive. See United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1249 (9th Cir.2003) (concluding that “[a] sentence of probation, with or without the two months’ incarceration, by definition is a sentence of. 13 months of [sic] less”).

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.