United States v. Rojas-Torres , 66 F. App'x 747 ( 2003 )

MEMORANDUM ^**

Martin Rojas-Torres appeals his jury trial conviction and 51-month sentence imposed for being an alien found in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

Rojas-Torres contends that the district court erred by admitting expert fingerprint evidence against him because such evidence does not meet the standards required for reliable scientific theory under Federal Rule of Evidence 702. We review for an abuse of discretion. United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir.2000). The district court conducted an evidentiary hearing and considered the factors enumerated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court’s conclusion that the evidence was relevant and reliable, and therefore admissible, was not an abuse of discretion. See Alatorre, 222 F.3d at 1105.

Rojas-Torres also contends that he is subject only to the two-year penalty under 8 U.S.C. § 1326(a) because the government neither pled an aggravated felony in the indictment, nor proved it beyond a reasonable doubt. This contention is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.2001) (concluding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) did not overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and did not limit Almendarez-Torres to cases where a defendant admits prior aggravated felony convictions on the record).

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.