United States v. Fonseca-Diaz

MEMORANDUM ** Lalo Fonseca-Diaz appeals his guilty plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 . Fonseca-Diaz’s counsel has filed a motion to withdraw as counsel and a brief pursuant to Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967), identifying one potential issue for review. Fonseca-Diaz has not filed a pro se supplemental brief. Counsel identifies the sole issue of whether the district court erred by imposing a prior aggravated felony enhancement, pursuant to 8 U.S.C. § 1326 (b)(2), in violation of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). This argument, however, has been foreclosed by our decision in United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (concluding that the fact of a prior conviction, whether or not admitted, is an exception to Apprendi). Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83 , 109 S.Ct. 346 , 102 L.Ed.2d 300 (1988), discloses no further issues for review. Accordingly, we GRANT counsel’s motion to withdraw and AFFIRM the judgment of the district court. 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.