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United States v. Hernandez-Diaz
Citation: 22 F. App'x 895Docket: No. 01-10325; D.C. No. CR-00-00149-DWH
Court: Court of Appeals for the Ninth Circuit; December 27, 2001; Federal Appellate Court
Larry Manuel Hernandez-Diaz appeals his 72-month sentence after pleading guilty to being an illegal alien and previously-convicted felon found in the U.S., violating 8 U.S.C. § 1326. The appellate court affirms the sentence, asserting jurisdiction under 28 U.S.C. § 1291. Hernandez-Diaz argues that the ruling in *Apprendi v. New Jersey* and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) imply that § 1326(b) constitutes a separate crime rather than merely a sentencing factor. He also claims that the sentencing enhancement under § 1326(b) should only apply to those aliens who have been removed, not those merely deported, as his indictment only cited deportation. The court finds these arguments unpersuasive, reiterating that *Apprendi* did not overturn *Almendarez-Torres v. United States*, which states that § 1326(b)(2) is a sentencing factor, not an element of the offense. The court cites precedent from *United States v. Arellano-Rivera* and *United States v. Pacheco-Zepeda* to support its position. Additionally, it concludes there is no meaningful legal distinction between "deportation" and "removal" concerning the definitions and enhancements outlined in § 1326. The appellate court affirms the original ruling, noting that the disposition is not suitable for publication and may not be cited in future cases except as allowed by 9th Cir. R. 36-3.