Lopez-Hernandez
United States v. Lopez-Hernandez
Opinion
Lead Opinion
MEMORANDUM **
Francisco Lopez-Hernandez appeals his conviction by guilty plea and sentence for one count of illegal re-entry in violation of 8 U.S.C. § 1326 . Lopez-Hernandez’s attorney has filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967), identifying two potential issues for review. Lopez-Hernandez has not filed a pro se supplemental brief.
Counsel first identifies the issue of whether the district court abused its discretion by denying Lopez-Hernandez’ request for a downward departure. Counsel correctly concludes that because the district court made a discretionary decision not to depart, this court lacks jurisdiction to consider the issue on appeal. United States v. Lipman, 133 F.3d 726, 729 (9th Cir.1998).
Counsel also identifies the issue of whether the district court violated Apprendi v. New jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), by imposing a sentence enhancement for a prior aggravated felony. Counsel correctly concludes that this argument has been foreclosed by our decision in United States v. PachecoZepeda, 234 F.3d 411 , 414 (9th Cir.2000), cert. denied, 532 U.S. 966…