United States v. Sandoval-Rivas

MEMORANDUM ** Eleazar Sandoval-Rivas appeals his jury conviction and sentence for being an alien found in the United States after deportation in violation of 8 U.S.C. § 1326 . Sandoval-Rivas contends that under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), the judgment should be reversed because the “fact” that the defendant’s deportation was subsequent to a conviction of an aggravated felony, which subjected him to an enhanced maximum term of imprisonment of twenty years under 8 U.S.C. § 1326 (b)(2), as amended, was not charged in the indictment and proven to the jury beyond a reasonable doubt. This contention is foreclosed by United States v. Castillo-Rivera, 244 F.3d 1020, 1024-25 (9th Cir.2001) (explaining that Apprendi carved out a recidivism exception under which neither the prior conviction nor the fact that the removal was subsequent to the prior conviction must be proved to a jury), and United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004) (order denying petition for rehearing and rehearing en banc) (observing that the Supreme Court in Blakely v. Washington, — U.S. —, 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), preserved its prior holding in Apprendi and Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), that a sentencing enhancement based on a defendant’s prior conviction does not have to be presented to a jury). 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.