United States v. Zapata-Robles

MEMORANDUM ^**

Jose Domingo Zapata-Robles (“Zapata-Robles”) appeals the 87-month sentence imposed by the district court following a remand from this Court for re-sentencing. We have jurisdiction under 18 U.S.C. § 3742(a), and we affirm.

Zapata-Robles contends that pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred by imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) based upon a prior aggravated felony. He also contends 8 U.S.C. § 1326(b) is unconstitutional and cannot be applied at sentencing because it allows a sentence to be increased based upon facts which were not submitted to a jury, violating Apprendi. Zapata-Robles’s arguments however, are foreclosed by this Court’s recent decision in United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001).

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.