Jimenez
United States v. Jimenez
Opinion
Lead Opinion
*672 MEMORANDUM **
Raul Villa Jimenez appeals his conviction and 77-month sentence following his guilty plea to one count of being an alien found in the United States after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 . Because Jimenez did not challenge below the use of his prior convictions to enhance his sentence, we review for plain error. See United States v. Pacheco-Zepeda, No. 99-50720, 2000 WL 33156290 , at *3 (9th Cir. Feb. 8, 2001) (amended opinion), cert. denied, — U.S. -, 121 S.Ct. 1503 , 149 L.Ed.2d 388 (2001) (No. 00-8814). We vacate and remand.
Jimenez contends that under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), his sentence was unlawful because it was based on a fact, his deportation following convictions for aggravated felonies, that was not alleged in the indictment or proven beyond a reasonable doubt. We reject Jimenez’s contention because it is foreclosed by our recent decision in Pacheco-Zepeda, 2000 WL 33156290 , at *4-*5 (concluding that Apprendi did not overrule Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998)).