United States v. Lomeli-Diaz

MEMORANDUM ** Jose Lomeli-Diaz pleaded guilty to illegal reentry pursuant to 8 U.S.C. § 1326 (a) and he was sentenced to 57 months in prison pursuant to 8 U.S.C. § 1326 (b)(2). He appeals this sentence. The facts and prior proceedings are known to the parties; they are not restated herein except as necessary. We affirm. The maximum penalty for illegal reentry is two years in prison, 8 U.S.C. § 1326 (a), unless one of the enhancements in 8 U.S.C. § 1326 (b) applies. One of these enhancements, which increases the maximum penalty for illegal reentry to twenty years if the defendant had been previously convicted of an aggravated felony at the time of his removal, 8 U.S.C. § 1326 (b)(2), applies in this case. The sentence Lomeli-Diaz challenges in this appeal is well within the twenty year maximum provided for in 8 U.S.C. § 1326 (b)(2). Nonetheless, he argues that, because his prior conviction was neither charged in the indictment for illegal reentry nor proved beyond a reasonable doubt before the jury in this case, it violated the Due Process Clause and the Sixth Amendment to increase, on the basis of his prior conviction, the maximum sentence he could receive from two to twenty years. The Supreme Court rejected this very argument in Almendarez-Torres v. United States, 523 U.S. 224, 239-47 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998). Although some doubt was cast upon the continued viability of Almendarez-Torres by the Supreme Court’s recent opinion in Apprendi v. New Jersey, 530 U.S. 466, 489-90 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), we have held that Almendarez-Torres remains good law. United States v.. Pacheco-Zepeda, 2000 WL 33156290 , at *4-*5 (9th Cir.2001). Moreover, we have held that Almendarez-Torres is not limited to its facts, and have extended it to defendants who, like Lomeli-Diaz, did not admit to their prior convictions at the time they pleaded guilty. 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 provided by Ninth Circuit Rule 36-3.