United States v. Tello-Duran

U.S. Court of Appeals for the Ninth Circuit
United States v. Tello-Duran, 88 F. App'x 240 (9th Cir. 2004)

United States v. Tello-Duran

Opinion of the Court

MEMORANDUM**

Abel Tello-Duran appeals the 84-month sentence imposed following his guilty plea to unlawful reentry by a deported, removed and/or excluded alien in violation of 8 U.S.C. § 1326(a).

Tello-Duran contends that his sentence in excess of two years is illegal and violates due process under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because at the plea hearing Tello-Duran admitted deportation but not removal, which, he says, is the exclusive condition precedent for enhanced punishment under the 1996 version of 8 U.S.C. § 1326(b)(2). We reject Tello-Duran’s contention that United States v. Lopez-Gonzalez, 183 F.3d 933, 934 (9th Cir. 1999) (concluding that any distinction between deportation and removal is legally insignificant for purposes of the 1996 version of § 1326), is not controlling. See also United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000) (holding that Apprendi preserved the holding of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and rejecting contention that a § 1326(b)(2) enhancement requires proof beyond a reasonable doubt of the prior aggravated felony conviction). The district court’s judgment is therefore

AFFIRMED.

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

Reference

Full Case Name
UNITED STATES of America, Plaintiff—Appellee v. Abel TELLO-DURAN, aka Candelario Rivera-Ayon, Defendant—Appellant
Status
Published