Ochoa-Ceja
United States v. Ochoa-Ceja
Opinion
Lead Opinion
MEMORANDUM **
Jose Ochoa-Ceja appeals his conviction and 46-month sentence following a bench trial in which Ochoa-Ceja stipulated to the elements of unlawful reentry and was found guilty of violating 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.
Ochoa-Ceja contends that 8 U.S.C. § 1326 (b) is unconstitutional and violates Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because it increases the statutory maximum penalty based on a prior conviction of an aggravated felony as a sentencing factor rather than an element of the crime. We review Ochoa-Ceja’s constitutional challenge de novo, see United States v. LaraAceves, 183 F.3d 1007, 1009 (9th Cir.1999), overruled on other grounds by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001) (en banc).
We reject Ochoa-Ceja’s contention because it is foreclosed by our decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.), cert. denied, 532 U.S. 966 , 121 S.Ct. 1503 , 149 L.Ed.2d 388 (2001) (concluding that Apprendi did not overrule the holding in United States v. Almendarez-Torres, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), that 8…