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U.S. Court of Appeals for the Ninth Circuit

Case Name:
Case Number: Date Filed:
99-50720 12/6/00




                                                     No. 99-50720
                                                     D.C. No.

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding

Argued and Submitted
September 13, 2000--Pasadena, California

Filed December 6, 2000

Before: Harry Pregerson, William A. Fletcher, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould



Korey House, Deputy Federal Public Defender, Los Angeles,
California, for the defendant-appellant.

Jean Rosenbluth and Jason A. Forge, Assistant United States
Attorneys, Los Angeles, California, for the plaintiff-appellee.



GOULD, Circuit Judge:

Gabriel Pacheco-Zepeda ("Pacheco-Zepeda") appeals his
57-month sentence for illegally reentering the United States
following deportation in violation of 8 U.S.C. S 1326.
Pacheco-Zepeda contends that the district court improperly
enhanced his sentence on the basis of prior convictions for
aggravated felonies that were not charged in the indictment,
submitted to a jury, and proved beyond a reasonable doubt.1
We reject this argument because it is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
1 Originally, Pacheco-Zepeda appealed on the ground that the district
court failed to comply with Federal Rule of Criminal Procedure 11. After
the Supreme Court's decision in Apprendi v. New Jersey, _______ U.S. _______,
120 S.Ct. 2348 (2000), Pacheco-Zepeda withdrew his original appeal and
challenged his sentence on the basis of Apprendi.



On June 22, 1999, the Immigration and Naturalization Ser-
vice ("INS") learned that Pacheco-Zepeda had been arrested
by the Los Angeles Sheriff's Department. Shortly thereafter,
while processing Pacheco-Zepeda for deportation, the INS
discovered that he had been deported from the United States
on five prior occasions and had not been given permission to

On July 16, 1999, the government filed an indictment
charging Pacheco-Zepeda with violating 8 U.S.C.S 1326. The
indictment did not allege that Pacheco-Zepeda had previously
been convicted of any felonies, aggravated or otherwise. On
September 1, 1999, Pacheco-Zepeda pled guilty to the one-
count indictment.

Following this plea, the United States Probation Office pre-
pared a presentence report ("PSR") indicating that Pacheco-
Zepeda had previously been convicted of several aggravated
felonies. In each instance, Pacheco-Zepeda had been deported
after serving his sentence. Given this criminal history, the
PSR applied a 16-level enhancement to Pacheco-Zepeda's
base offense level.2 Pacheco-Zepeda neither admitted nor con-
tested the fact of his prior convictions. He also did not chal-
lenge the use of such convictions to enhance his sentence. He
did argue, however, that the criminal history category set
forth in the PSR overstated the seriousness of his prior con-

At sentencing, the district court adopted the PSR's sentenc-
ing calculations, including the 16-level enhancement, but
granted Pacheco-Zepeda's request for a downward departure
based on the overstatement of his criminal history. Operating
2 Section 2L1.2(b)(1)(A) of the Sentencing Guidelines provides for a 16-
level increase where a defendant convicted of violating S 1326 was previ-
ously deported after an aggravated felony conviction.


within the resulting Guideline range of 57-71 months, the
court sentenced Pacheco-Zepeda to 57 months imprisonment.
Pacheco-Zepeda now appeals.


We review de novo the legality of a sentence, United States
v. Murphy, 65 F.3d 758, 762 (9th Cir. 1995), and the purely
legal question of whether Apprendi v. New Jersey , _______ U.S.
_______, 120 S.Ct. 2348 (2000), requires that Pacheco-Zepeda be
resentenced, United States v. Michael R., 90 F.3d 340, 343
(9th Cir. 1996).


Aliens who return to the United States after deportation and
without permission are subject to two years incarceration. 8
U.S.C. S 1326(a). An additional prison term of up to twenty
years may be imposed for aliens "whose [prior ] removal was
subsequent to a conviction for commission of an aggravated
felony." 8 U.S.C. S 1326(b)(2). Pacheco-Zepeda, whose sen-
tence for illegal reentry was increased pursuant to
S 1326(b)(2), asserts that the district court erred in consider-
ing his prior aggravated felony convictions during sentencing
because such convictions were not charged in the indictment
or proved beyond a reasonable doubt.3 In light of Almendarez-
Torres v. United States, 523 U.S. 224 (1998), this argument

[1] In Almendarez-Torres, the Supreme Court considered
whether S 1326(b)(2) "defines a separate crime or simply
3 It is not clear from the record whether the district court considered one
or all of Pacheco-Zepeda's prior aggravated felony convictions in impos-
ing the 57-month sentence. For purposes of this appeal, however, the issue
is irrelevant. The enhancement under S 1326(b)(2) would have been the
same whether the district court considered one or all of the prior aggra-
vated felonies.


authorizes an enhanced penalty." 523 U.S. at 226. The
Supreme Court expressly and unequivocally held that
S 1326(b)(2) "simply authorizes a court to increase the sen-
tence for a recidivist . . . [and] does not define a separate
crime." Id. In so holding, the Court rejected the argument that,
because the fact of recidivism increased the maximum penalty
to which a defendant was exposed, Congress was constitu-
tionally required to treat recidivism as an element of the crime
that must be charged in the indictment and proved beyond a
reasonable doubt. Id. at 239. Almendarez-Torres, therefore,
"stands for the proposition that not every fact expanding a
penalty range must be stated in a felony indictment, the pre-
cise holding being that recidivism increasing the maximum
penalty need not be so charged." Jones v. United States, 526
U.S. 227, 248 (1999).

[2] Thus, Almendarez-Torres is dispositive here. The dis-
trict court was entitled to consider any prior aggravated felony
convictions in sentencing Pacheco-Zepeda for illegal reentry
even though such conduct had not been charged in the indict-
ment, presented to a jury, and proved beyond a reasonable


Pacheco-Zepeda contends that a different result is required
by Apprendi. In Apprendi, the defendant appealed the sen-
tence imposed following his plea of guilty to second-degree
possession of a firearm for an unlawful purpose. Apprendi,
120 S.Ct. at 2352. Although the statutory penalty for this
crime was five to ten years in prison, the trial judge found by
a preponderance of the evidence that the defendant had vio-
lated New Jersey's hate crime statute and thus enhanced his
sentence to twelve years. Id. On appeal, the United States
Supreme Court reversed the sentence, holding that"[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum


must be submitted to a jury, and proved beyond a reasonable
doubt." Id. at 2362-63.

Pacheco-Zepeda asserts that Apprendi so "thoroughly
undermined the reasoning of [Almendarez-Torres]" that the
case "no longer has precedential value." We reject this argu-

It is true that in Apprendi, the Court expressed reservations
about Almendarez-Torres. Apprendi, 120 S.Ct. at 2362 ("[I]t
is arguable that Almendarez-Torres was incorrectly decided,
and that a logical application of our reasoning today should
apply if the recidivist issue were contested."). However, the
Court reasoned that any due process or Sixth Amendment
concerns -- arising out of the judicial determination of a
"fact" that increased punishment beyond the statutory maxi-
mum -- were mitigated in Almendarez-Torres by "[b]oth the
certainty that procedural safeguards attached to any`fact' of
prior conviction, and the reality that [the defendant] did not
challenge the accuracy of that `fact' in his case." Id. Thus, the
Court in Apprendi chose not to overrule Almendarez-Torres,
and unmistakably carved out an exception for "prior convic-
tions" that specifically preserved the holding of Almendarez-
Torres. Id. at 2362-63.

Because Apprendi preserves Almendarez-Torres as a "nar-
row exception" to Apprendi's general rule, we can conclude,
at most, that Apprendi casts doubt on the continuing viability
of Almendarez-Torres. If the views of the Supreme Court's
individual Justices and the composition of the Court remain
the same, Almendarez-Torres may eventually be overruled.4
But such speculation does not permit us to ignore controlling
4 Almendarez-Torres was a five to four decision in which Justice Scalia,
joined by Justices Stevens, Souter and Ginsburg, dissented. Justice
Thomas -- who cast the fifth and deciding vote in Almendarez-Torres,
stated in Apprendi that Almendarez-Torres was wrongly decided. 120
S.Ct. at 2379 (Thomas, J. concurring).


Supreme Court authority. Unless and until Almendarez-Torres
is overruled by the Supreme Court, we must follow it. Agos-
tini v. Felton, 521 U.S. 203, 237 (1997) (directing that lower
courts should " `leav[e] to this Court the prerogative of over-
ruling its own decisions' ") (quoting Rodriguez de Quijas v.
Sherson Am. Express, Inc., 490 U.S. 477, 484 (1989)).


Pacheco-Zepeda argues in the alternative that Apprendi
limited Almendarez-Torres "strictly to the facts of that case."
We disagree. Although Apprendi does refer to the fact that the
defendant in Almendarez-Torres did not challenge the accu-
racy of his prior convictions, nowhere does Apprendi limit
Almendarez-Torres to cases where a defendant admits prior
aggravated felony convictions on the record. Apprendi, 120,
S.Ct. at 2362. To the contrary, Apprendi held that all prior
convictions -- not just those admitted on the record -- were
exempt from Apprendi's general rule and, under Almendarez-
Torres, may continue to be treated as sentencing factors.


Although they may conflict in spirit, the rules of Apprendi
and Almendarez-Torres can be reconciled. Thus, unless and
until the Supreme Court expressly overrules it, Almendarez-
Torres controls here. Under Almendarez-Torres, the govern-
ment was not required to include Pacheco-Zepeda's prior
aggravated felony convictions in the indictment, submit them
to a jury, or prove them beyond a reasonable doubt, and the
district court properly considered such convictions in sentenc-