Cezberg-Loarca
United States v. Cezberg-Loarca
Opinion
Lead Opinion
MEMORANDUM **
Roberto Cezberg-Loarca appeals the 60-month sentence imposed following his guilty plea to unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326 . Cezberg-Loarca contends that in light of Apprendi v. Neto Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), the district court erred in imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326 (a) based upon prior aggravated felonies which the indictment did not allege, to which he did not admit, and which were not submitted to a jury and proven beyond a reasonable doubt. He also contends that Apprendi renders inapplicable Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998) (holding that 8 U.S.C. § 1326 (b)(2) is a sentencing factor and not a separate offense), because he did not admit to an aggravated felony at his plea hearing. He further contends that 8 U.S.C. § 1326 (b), as construed by the Supreme Court in Almendarez-Torres , is unconstitutional on its face after Apprendi . His arguments are foreclosed by our recent decision in United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001).