Fonseca-Diaz
United States v. Fonseca-Diaz
Opinion
Lead Opinion
MEMORANDUM **
Lalo Fonseca-Diaz appeals his guilty plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 . Fonseca-Diaz’s counsel has filed a motion to withdraw as counsel and a brief pursuant to Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967), identifying one potential issue for review. Fonseca-Diaz has not filed a pro se supplemental brief.
Counsel identifies the sole issue of whether the district court erred by imposing a prior aggravated felony enhancement, pursuant to 8 U.S.C. § 1326 (b)(2), in violation of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). This argument, however, has been foreclosed by our decision in United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (concluding that the fact of a prior conviction, whether or not admitted, is an exception to Apprendi).
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83 , 109 S.Ct. 346 , 102 L.Ed.2d 300 (1988), discloses no further issues for review. Accordingly, we GRANT counsel’s motion to withdraw and AFFIRM the judgment of the…