United States v. Rodriguez-Jimenez

MEMORANDUM²

Jose Luis Rodriguez-Jimenez appeals the 44-month sentence imposed following his guilty plea for being an illegal alien found in the United States following deportation. Rodriguez-Jimenez contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), his sentence must be vacated because it exceeds the two-year maximum set forth in 8 U.S.C. § 1326(a) based upon a prior felony to which he did not admit and which was not proven beyond a reasonable doubt to a jury. Rodriguez-Jimenez also contends that Apprendi renders inapplicable Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that 8 U.S.C. § 1326(b)(2) is a sentencing factor and not a separate offense), because he did not admit that his removal from the United States was subsequent to his conviction of an aggravated felony. His arguments are foreclosed by this court’s recent decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), amended (Feb. 8, 2001) (order). United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir.2001).³

AFFIRMED.

2 . 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 9th Cir. R. 36-3.

3 . We deny as moot defendant's request to stay this appeal pending the outcome of Pacheco-Zepeda.