United States v. Pedro Mendoza-Zaragoza

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30130 Plaintiff-Appellee, D.C. No. v.  2:07-cr-06044-EFS-

PEDRO MENDOZA-ZARAGOZA,

Defendant-Appellant.  OPINION

Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding

Argued and Submitted February 4, 2009—Seattle, Washington

Filed May 27, 2009

Before: Betty B. Fletcher, Pamela Ann Rymer and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher COUNSEL

Rebecca L. Pennell, Assistant Federal Public Defender, Yak- ima, Washington, for the defendant-appellant. 6220 UNITED STATES v. MENDOZA-ZARAGOZA James A. McDevitt, United States Attorney and Alexander C. Ekstrom (argued), Assistant United States Attorney, Yakima, Washington, for the plaintiff-appellee.

OPINION

FISHER, Circuit Judge:

This appeal arises from an arguable ambiguity in our cases applying Apprendi v. New Jersey, 530 U.S. 466 (2000), to indictments and sentences under 8 U.S.C. § 1326. We now eliminate that ambiguity,…