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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
Case Name:
Case Number: Date Filed: 
99-30171 12/15/00 



UNITED STATES OF AMERICA,                             No. 99-30171
                                                     D.C. No.
v.                                                    CR 99-05084-RJB

SERGIO FRESNARES-TORRES,                              ORDER AND
Defendant-Appellant.                                  OPINION

Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding

Argued and Submitted
October 2, 2000--Seattle, Washington

Filed October 18, 2000
Order Filed December 15, 2000

Before: Alfred T. Goodwin, Arthur L. Alarcon, and
M. Margaret McKeown, Circuit Judges.

Opinion by Judge Goodwin

Miriam Schwartz, Assistant Federal Public Defender,
Tacoma, Washington, for the defendant-appellant.

Arlen Storm, Assistant United States Attorney, Tacoma,
Washington, for the plaintiff-appellee.

The memorandum disposition filed October 18, 2000, is
redesignated as an authored opinion by Judge Goodwin, with

Judge McKeown has voted to deny the petition for rehear-
ing en banc, and Judges Goodwin and Judge Alarcon recom-
mended denial.


The full court has been advised of the petition for rehearing
en banc and no active judge has requested a vote on whether
to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED.

The appellant's request for this court to stay its reconsider-
ation of the appeal pending the Supreme Court's action on a
petition for certiorari from a Fifth Circuit case, Luna-
Dominguez v. United States, Docket No. 00-5204 is DENIED.

GOODWIN, Circuit Judge:

Sergio Fresnares-Torres appeals his conviction for illegal
reentry after deportation in violation of 8 U.S.C.S 1326(a).
We have jurisdiction pursuant to 28 U.S.C. S 1291, and we

On or about December 29, 1998, a Special Agent of the
Immigration and Naturalization Service encountered
Fresnares-Torres at the Pierce County Jail in Tacoma, Wash-
ington. Fresnares-Torres was subsequently proven to have
been previously deported in July 1994 or 1995 subsequent to
his conviction for Conspiracy to Deliver a Controlled Sub-
stance. He had no permission from the United States Attorney
General to return to the United States. The district court
accepted Fresnares-Torres's plea of guilty to the Information
and sentenced him to 46 months' imprisonment, a term that
reflects a sentence enhancement in light of Fresnares-Torres's
conviction for an aggravated felony prior to deportation.
Appellant argues that the fact of his prior conviction is an ele-
ment of the offense of illegal reentry, and the government's
failure to charge this fact in the indictment amounts to revers-
ible error.


[1] The fact of a prior conviction constitutes a penalty fac-
tor, and not an element of the offense, under 8 U.S.C.
S 1326(b)(2), and therefore need not be charged in the indict-
ment. "Other than the fact of prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statu-
tory maximum must be submitted to a jury, and proved
beyond reasonable doubt." Apprendi v. New Jersey, 120 S. Ct.
2348, 2362-63 (2000). In Apprendi, the Supreme Court con-
cluded that "the certainty that procedural safeguards attached
to any `fact' of prior conviction . . . mitigated the due process
and Sixth Amendment concerns otherwise implicated in
allowing a judge to determine a `fact' increasing punishment
beyond the maximum of the statutory range." Id. at 2362.
Accordingly, a prior conviction is the only factor that
increases a penalty beyond the statutory maximum that need
not be submitted to a jury. See also Jones v. United States,
526 U.S. 227, 248 (1999) ("[R]ecidivism increasing the maxi-
mum penalty need not be so charged.").

Apprendi therefore preserved the specific holding of
Almendarez-Torres v. United States, 523 U.S. 224, 226
(1998) that 8 U.S.C. S 1326(b)(2)--the subsection increasing
the penalty for previous deportation following conviction of
an aggravated felony--was a mere penalty provision for
recidivist behavior and did not define a separate offense.
Appellant's contention that Apprendi cannot be followed
without disregarding Almendarez-Torres (and vice-versa) is
therefore mistaken. United States v. Pacheco-Zepeda, No. 99-
50720, 2000 WL 1781662 (9th Cir. Dec. 6, 2000).

[2] There is no dispute that the matter before us concerns
the fact of a prior conviction--the defendant's aggravated fel-
ony conviction for Conspiracy to Deliver a Controlled Sub-
stance. The plain language of the Apprendi holding thus
makes clear that the government was not required to charge
the fact of this conviction in the Information and prove its
existence to a jury beyond a reasonable doubt.


There was no error in the sentence enhancement imposed
by the district court which was well within the guideline range
on the facts of this case.