Zepeda-Martinez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-50562 Plaintiff-Appellee, v.  D.C. No.

CR-04-02895-LAB

FELIPE ZEPEDA-MARTINEZ,

OPINION

Defendant-Appellant.  Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted September 13, 2006—Pasadena, California

Filed December 13, 2006

Before: Cynthia Holcomb Hall, M. Margaret McKeown, and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Hall

19431 19434 UNITED STATES v. ZEPEDA-MARTINEZ

COUNSEL

Kurt D. Hermansen, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Mark R. Rehe, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

OPINION

HALL, Senior Circuit Judge:

In United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006), we determined that Apprendi v. New Jersey, 530 U.S. 466 (2000) prevents a sentencing court from enhancing an alien’s sentence based upon a removal subsequent to a prior conviction unless that removal has been admitted by the…