United States v. Mejia-Vasquez , 14 F. App'x 65 ( 2001 )

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.

Antonio Mejia-Vasquez appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York, following a guilty plea to one count of entering the United States after having been deported, in violation of 8 U.S.C. § 1326(a). The district court sentenced him principally to 77 months’ imprisonment. The sentence was increased beyond the maximum prescribed under § 1326(a) because the district court found that Mejia-Vasquez had committed an aggravated felony prior to deportation, see § 1326(b)(2), a fact not alleged in the indictment.

On appeal, Mejia-Vasquez challenges only his sentence. First, he argues that the sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because § 1326(b)(2), which authorizes a maximum prison term of 20 years for a person whose deportation followed a conviction for an aggravated felony, must be construed as setting out an offense distinct from the one described in § 1326(a), which does not mention prior convictions and limits the term of imprisonment to two years. Mejia-Vasquez believes that Apprendi overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that § 1326(b) is merely a penalty provision and does not set out a separate offense. We reject this argument for the reasons stated in United States v. Latorre-Benavides, 241 F.3d 262 (2d Cir.2001) (per curiam).

Second, Mejia-Vasquez argues that Almendarez-Torres should be limited to cases in which the defendant admitted in his plea allocution to having committed an aggravated felony prior to deportation. Mejia-Vasquez did not admit this fact in his allocution, but neither did he deny it, and does not contest it on appeal.

Almendarez-Torres nowhere imposes the limitation sought by Mejia-Vasquez; instead, the opinion explained that the fact of a prior conviction is a “sentencing factor” for the district court’s determination. Id., 523 U.S. at 230. A trial judge is not limited to a defendant’s allocution in making factual findings for sentencing purposes, and “may rely upon any information known to it.” United States v. Franklyn, 157 F.3d 90, 97 (2d Cir.1998).