Moreno-Galindo

MEMORANDUM

Julio Cesar Moreno-Galindo appeals his 70-month sentence imposed following conviction after a jury trial to a single count of being found in the United States following deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). Because Moreno-Galindo did not object to the use of his prior aggravated felony to enhance his sentence, we review for plain error, United States v. Pacheco-Zepeda, No. 99-50720, 2000 WL 33156290 , at *3 (9th Cir. Dec. 6, 2000), and affirm.

Moreno-Galindo contends that the district court erred by sentencing him pursuant to 8 U.S.C. § 1326 (b)(2). Specifically, he argues that Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), requires that the fact of his prior conviction for an aggravated felony be proved beyond a reasonable doubt. We disagree.

The plain language of Apprendi excludes from its holding prior convictions, thereby preserving the specific holding of Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), that subsection (b)(2) constitutes a sentence enhancement and not a separate offense. Pacheco-Zepeda…