Herrera-Vargas

MEMORANDUM **

Defendant Gilberto Herrera-Vargas (“Herrera”) was indicted for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 . He pleaded guilty to the single-count indictment and received a 77-month sentence, including enhancements for prior convictions and criminal history. He appeals his sentence on the grounds that: (1) the 16-level enhancement under § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines (“U.S.S.G.”) violated his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004); and (2) the district court imposed the enhancement without making factual findings about Herrera’s status of probation, parole, or supervised release, also in violation of Blakely .

Herrera’s first argument fails because the application of a § 2L1.2 enhancement does not violate Apprendi and Blakely ; those eases carve out an express exception for the fact of a prior conviction. See United States v. Quintana-Quintana, 383 F.3d 1052, 1052-53 (9th Cir.2004) (citing Apprendi, 530 U.S. at 490 , 120 S.Ct. 2348 , 147 L.Ed.2d…