Narrative Opinion Summary
In this appellate case, the appellant, previously deported and convicted for illegal reentry, contests his sentence enhancement under 8 U.S.C. 1326(b)(2) following an 'aggravated felony.' He argues that the indictment failed to specify the aggravated felony, invoking Apprendi v. New Jersey. The court affirms the district court's decision, referencing United States v. Pacheco-Zepeda, which previously addressed this issue. Additionally, the appellant introduces a new appeal claim regarding two misdemeanor convictions used in sentencing, asserting lack of counsel during those convictions and absence of warnings about their enhancement implications. The court finds no plain error, referencing Nichols v. United States to support the use of uncounseled misdemeanors for enhancement. Lastly, the appellant's request for a downward departure due to cultural assimilation was denied by the district court. The appellate court declares it lacks jurisdiction to review this discretionary denial, as there was no indication of the district court's misunderstanding of its authority. Consequently, the appeal is denied, and the decisions of the lower court are upheld, with no publication or citation intended for this disposition except as permitted by Ninth Circuit Rule 36-3.
Legal Issues Addressed
Jurisdiction to Review Discretionary Downward Departuresubscribe to see similar legal issues
Application: The court lacks jurisdiction to review the district court's discretionary decision to deny a downward departure based on cultural assimilation, as there was no indication of misinterpretation of authority.
Reasoning: However, the court lacks jurisdiction to review this discretionary decision, as there is no indication that the district court believed it lacked authority to grant a departure.
Requirement of Indictment Specificity under Apprendi v. New Jerseysubscribe to see similar legal issues
Application: The court rejected the appellant's argument that the indictment must specify the 'aggravated felony' under 8 U.S.C. 1326(b)(2), affirming the district court's sentence enhancement.
Reasoning: He claims that the sentencing provision under 8 U.S.C. 1326(b)(2) for individuals with an 'aggravated felony' must be included in the indictment as per Apprendi v. New Jersey.
Sentence Enhancement and Prior Convictions without Counselsubscribe to see similar legal issues
Application: The court found no plain error in considering uncounseled misdemeanor convictions for sentence enhancement, as due process does not require warnings about such use.
Reasoning: The court finds no plain error, citing Nichols v. United States, which allows for uncounseled misdemeanor convictions to be valid for enhancement purposes, affirming that due process does not require warnings about such use.