Hernandez-Garcia

MEMORANDUM *

Mario Andres Hernandez-Gareia pled guilty to one count of being found in the United States following four prior deportations in violation of 8 U.S.C. § 1326 . The Indictment alleged that Hernandez-Gareia had three prior aggravated felony convictions, which if true, would increase his maximum prison sentence from 10 to 20 years. Before trial, Hernandez-Gareia moved to dismiss the Indictment on the ground that his three prior convictions did not constitute aggravated felonies. The district court denied the motion, ruling that this was a sentencing issue best deferred to that phase of the proceedings. Hernandez-Gareia conditionally pled guilty to the Indictment, reserving the right to appeal the district court’s denial of his pretrial motion. The district court sentenced Hernandez-Gareia to 24 months imprisonment, and three years supervised release. Hernandez-Gareia completed his prison term January 7, 2004.

Hernandez-Gareia asserts that the district court’s refusal to determine whether his prior felony convictions constituted aggravated felonies was a violation of Federal Rule of Criminal Procedure 12. He also appeals the district court’s decision that his conviction…