United States v. Roberto Echavarria-Escobar, Aka, Roberto Escobar Aka, Baudilo Echeveria Aka, Roberto Car Escobar-Rodriguez

Roberto Echavama-Escobar (“Echavar-ria”) appeals his sentence of 46 months imprisonment for illegal reentry into the United States following deportation and an aggravated felony conviction, in violation of 8 U.S.C. § 1326 (a). He challenges the increase of his sentence by 16 levels pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 2L1.2(b)(l)(A), contending that because his prior theft offense sentence was suspended, it did not constitute an aggravated felony. We disagree. Like every other circuit court that has considered this question, we conclude that imposition of a sentence meeting the requirements of 8 U.S.C. § 1101 (a)(43), even if later suspended, satisfies the requirements of 8 U.S.C. § 1326 (b)(2). We also reject Echavarria’s argument that the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), by enhancing his sentence 16 levels without charging his previous aggravated felony in the indictment. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I. BACKGROUND

On April 15, 1999, Echavarria was convicted of the felony offense of theft, in violation of Nevada Revised Statute (“NRS”) 205.0832…