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--------------------------------------------------------------------------------
Case Name:
USA V ARELLANO-RIVERA 
Case Number: Date Filed: 
00-50453 04/04/01 
--------------------------------------------------------------------------------
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
                                                     No. 00-50453
Plaintiff-Appellee,
                                                     D.C. No.
v.                                                    CR-00-00017-GT
HECTOR ARELLANO-RIVERA,
                                                     OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., Senior District Judge, Presiding

Argued and Submitted
February 8, 2001--Pasadena, California

Filed April 4, 2001

Before: Edward Leavy, Stephen S. Trott, and
Barry G. Silverman, Circuit Judges.

Opinion by Judge Trott
_________________________________________________________________
COUNSEL

Joseph S. Smith, Office of the United States Attorney, San
Diego, California, for the plaintiff-appellee.

Benjamin P. Lechman, Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.
_________________________________________________________________
OPINION

TROTT, Circuit Judge:

I

Overview

Defendant-Appellant Hector Arellano-Rivera ("Arellano-
Rivera") was convicted of unlawfully reentering the United
States after being deported in violation of 8 U.S.C.S 1326. In
this appeal, Arellano-Rivera argues that the district court
erred by (1) refusing to dismiss the indictment against him on

                               4275
the basis of Speedy Trial Act violations; (2) precluding him
from presenting evidence he claims supports a necessity
defense; and (3) enhancing his sentence based on prior aggra-
vated felony convictions.

We have jurisdiction over this timely appeal under 28
U.S.C. S 1291, and for the reasons expressed below, we
AFFIRM his conviction and sentence.

II

Background

A. Pre-Trial

On October 5, 1999, United States Border Patrol Agent
Bernal Sanchez ("Agent Sanchez") was on duty in the hills
near Andrade, California, about two miles from the United
States-Mexico border. Agent Sanchez noticed some footprints
on the ground and followed the prints to a group of five indi-
viduals nearby. Arellano-Rivera was among this group.
Arellano-Rivera admitted that he was a citizen of Mexico and
had no legal right to be in the United States. Agent Sanchez
escorted Arellano-Rivera to the Border Patrol station, where
he was advised of his Miranda rights. After waiving those
rights, Arellano-Rivera again admitted that he was born in
Mexico and was a citizen of that country. Another agent
reviewed Arellano-Rivera's immigration records and deter-
mined that he previously had been deported from the United
States.

The next day, on October 6, 1999, Arellano-Rivera was for-
mally arrested, and a criminal complaint was filed against him
alleging that he illegally reentered the United States after hav-
ing been deported, a violation of 8 U.S.C. S 1326 (West
2001). A probable cause hearing for this case was scheduled
for October 21, 1999.

                               4276
Before the probable cause hearing, the government made
the following offer: the government would drop the more seri-
ous S 1326 charge if Arellano-Rivera agreed to plead guilty
to lesser charges under 8 U.S.C. S 1325 (West 2001). At the
October 21, 1999 probable cause hearing, Arellano-Rivera
requested and was granted a two-week continuance to con-
sider the government's offer.

On November 4, 1999, the prosecutor, who had been led to
believe that Arellano-Rivera was interested in the plea offer,
filed a criminal information charging Arellano-Rivera with a
misdemeanor count and a felony count of violatingS 1325.
Arellano-Rivera waived indictment on these S 1325 charges.
On three subsequent occasions, he sought and was granted a
continuance. Eventually, on January 5, 2000, Arellano-Rivera
stated that he would not plead guilty to the S 1325 charges
and requested additional time to consult with his attorney.

That same day, in response to Arellano-Rivera's decision to
reject its plea offer, the government obtained a grand jury
indictment charging him with a single felony violation of
S 1326. Two days later, on January 7, 2000, the government
moved to dismiss the case that had been initiated by the
S 1325 information. The district court granted the govern-
ment's motion to dismiss that case.

Arellano-Rivera's counsel then moved to dismiss the
S 1326 indictment, claiming that the government violated the
Speedy Trial Act ("STA"). See 18 U.S.C. S 3161 (West
2001). The STA requires that an indictment be obtained
"within thirty days from the date on which such individual
was arrested or served with a summons in connection with
such charges." Id. S 3161(b). Arellano-Rivera pointed out that
the initial criminal complaint charging him with violating
S 1326 was filed on October 6, 1999, but that the indictment
charging him with violating S 1326 was not obtained until
January 5, 2000, almost ninety days later. After briefing and

                               4277
oral argument, the district court denied Arellano-Rivera's
motion to dismiss the indictment.

B. Trial

On March 14, 2000, the first day of trial, Arellano-Rivera's
counsel informed the court that he intended to call witnesses
to support a defense of necessity based on his client's medical
condition. The government objected and asked the court to
preclude Arellano-Rivera from introducing such evidence.
Defense counsel proffered that Arellano-Rivera suffers from
an advanced case of Acquired Immune Deficiency Syndrome
("AIDS") and from other related diseases, and that he was
forced to reenter the United States in order to receive treat-
ment that is unavailable in Mexico. The district court, how-
ever, found "that Mr. Arellano's offer of proof is insufficient
to support the proffered defense," and precluded him from
presenting a necessity defense to the jury.

The jury convicted Arellano-Rivera of violatingS 1326.
After he was found guilty, Arellano-Rivera moved for acquit-
tal and, in the alternative, for a new trial. Along with these
motions, Arellano-Rivera submitted in excess of 100 pages of
materials detailing the seriousness of his medical condition.
The district court denied both motions.

C. Sentencing

Before the sentencing hearing, the Probation Department
recommended, among other things, that Arellano-Rivera's
base offense level be increased sixteen levels because he had
been deported previously following a conviction for an aggra-
vated felony. See United States Sentencing Guidelines
("U.S.S.G.") S 2L1.2(b)(1)(A). Arellano-Rivera objected to
the sixteen-level increase because the government had not
charged in the indictment nor proved at trial that he had been
previously convicted of an aggravated felony. The district
court rejected his argument. The court determined that United

                               4278
States v. Almendarez-Torres, 523 U.S. 224 (1998), which held
that prior convictions need not be proven beyond a reasonable
doubt, was an exception to the constitutional rule expressed
in Apprendi v. New Jersey, 530 U.S. 466, _______, 120 S.Ct.
2348, 2362-63 (2000), that "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."
Accordingly, the court sentenced Arellano-Rivera to sixty
months in prison.

III

Discussion

A. Speedy Trial Act

Arellano-Rivera argued below and contends again on
appeal that the government violated the Speedy Trial Act
because (1) it did not obtain an indictment on theS 1326
charge within thirty days of his arrest, and (2) his trial did not
commence within seventy days of the filing of the informa-
tion. The district court rejected both contentions."We review
a district court's application of the Speedy Trial Act de novo."
United States v. Ramirez-Cortez, 213 F.3d 1149, 1153 (9th
Cir. 2000).

1. Delay in Obtaining the Indictment

[1] The Speedy Trial Act requires the filing of an indict-
ment or information within thirty days of a defendant's arrest
or service of summons. See 18 U.S.C. S 3161(b); Ramirez-
Cortez, 213 F.3d at 1153. "After this time, the government
may indict on new charges, or it may abandon the original
charges upon which the defendant is held, but it may not
indict on the same charge for which the defendant was arrest-
ed." United States v. Lopez-Osuna, 2000 WL 33233593, at *4
(9th Cir. 2000).

                               4279
[2] However, under the statute, certain periods of delay are
excluded from the thirty-day computation. See 18 U.S.C.
S 3161(h)(1)-(9). Most important to this case,"[a]ny period of
delay resulting from other proceedings concerning the defen-
dant" is excludable. Id. S 3161(h)(1).

The criminal complaint charging Arellano-Rivera with vio-
lating S 1326 was filed on October 6, 1999. The STA clock
started running on that date. See United States v. Candelaria,
704 F.2d 1129, 1131-32 (9th Cir. 1983). Counting ahead
thirty days, excluding the day of arrest but including week-
ends and holidays, see United States v. Pollock , 726 F.2d
1456, 1460 n.6 (9th Cir. 1984), the government was initially
required to obtain an indictment charging Arellano-Rivera
with violating S 1326 by November 6, 1999. The government
did not obtain an indictment charging Arellano-Rivera with
violating S 1326 until January 5, 2000, well after the thirty-
day window prescribed by the STA. See 18 U.S.C. S 3161(b).

The government acknowledges that it did not obtain an
indictment on the S 1326 charge within thirty days of filing
the criminal complaint, but contends that a significant portion
of the intervening time is excludable under the statute.
According to the government, once the delay attributable to
"other proceedings" is properly excluded, see id.
S 3161(h)(1), the indictment against Arellano-Rivera was
obtained within the thirty-day safe harbor. See 18 U.S.C.
S 3161(b). We agree.

We recently decided an identical issue in United States v.
Lopez-Osuna. 2000 WL 33233593. In that case, the govern-
ment filed a criminal complaint charging Lopez-Osuna with
violating 8 U.S.C. S 1326. Id. at *2. As part of its "fast-track
program," the government offered to drop theS 1326 charge,
if Lopez-Osuna agreed to plead guilty to lesser charges under
8 U.S.C. S 1325. Id. Lopez-Osuna initially reacted favorably
to the offer, so the prosecutor filed a criminal information
charging him with violating S 1325. Id.  at *5. Lopez-Osuna

                               4280
waived indictment on the S 1325 charges, and the case initi-
ated by the information proceeded. Id. On several occasions
and for varying reasons, Lopez-Osuna sought and was granted
a continuance. Id. at *2. Eventually, he decided not to plead
guilty to the S 1325 charges. Id. at *3. In response, the gov-
ernment obtained an indictment charging Lopez-Osuna with
violating S 1326 and dismissed the case initiated by the
S 1325 information. Id.

We observed that the government clearly did not obtain the
S 1326 indictment within the thirty-day time period allotted
by the STA. Id. at *4-5 (citing 18 U.S.C.S 3161(b)). Never-
theless, we determined that a significant portion of the inter-
vening time was excludable. Id. In particular, we noted that
delay resulting from trial with respect to other charges against
the defendant, including the period of time utilized in making
necessary preparations for trial, was excludable as delay
resulting from "other proceedings" concerning the defendant.
See id. at *5 (citing United States v. Lopez-Espindola, 632
F.2d 107, 110 (9th Cir. 1980) and 18 U.S.C. S3161(h)(1)(D)).
Because SS 1325 and 1326 are separate offenses with some
different elements, we concluded that the case initiated by the
S 1325 information was an "other proceeding " for purposes of
the STA. Id. Thus, "[a]ll time was excludable after Lopez
waived indictment so long as the information was pending."
Id.

Arellano-Rivera's case is indistinguishable from Lopez-
Osuna. The government did not obtain an indictment charging
Arellano-Rivera with violating S 1326 within the thirty-day
period prescribed by the STA. See 18 U.S.C.S 3161(b). How-
ever, once Arellano-Rivera waived indictment on theS 1325
charges, the case triggered by the S 1325 information was an
"other proceeding" for purposes of the STA. See Lopez-
Osuna, 2000 WL 33233593, at *4-5. Accordingly, any delay

                               4281
attributable to the case initiated by the S 1325 information is
excludable.1 See id.

As indicated above, the government was initially required
to obtain the indictment charging Arellano-Rivera under
S 1326 by November 6, 1999. Arellano-Rivera waived indict-
ment on the S 1325 charges and elected to proceed by way of
information on November 4, 1999. The STA clock was tolled
at that time. See 18 U.S.C. S 3161(h)(1)(D); Lopez-Osuna,
2000 WL 33233593, at *4-5. On January 5, 2000, the same
day Arellano-Rivera decided not to plead guilty to the S 1325
charges, the government obtained the indictment under
S 1326. Thus, all time between November 4, 1999, and Janu-
ary 5, 2000 is excludable under the STA. 18 U.S.C.
S 3161(h)(1)(D); Lopez-Osuna, 2000 WL 33233593, at *4-5.
Because the government had until January 7, 2000, to obtain
an indictment under S 1326, and it did so on January 5, 2000,
there was no Speedy Trial Act violation.

Arellano-Rivera attempts to distinguish his case from
Lopez-Osuna and claims that it is more analogous to United
States v. Ramirez-Cortez, 213 F.3d 1149, 1153 (9th Cir.
2000). We respectfully disagree.

Ramirez-Cortez concerned an entirely different provision of
the STA than the provision at issue here. Ramirez-Cortez
addressed whether certain amounts of time were excludable
under the so-called "ends-of-justice" provision. See 18 U.S.C.
S 3161(h)(8); Ramirez-Cortez, 213 F.3d at 1153-54. In con-
trast, the instant case (as well as Lopez-Osuna ) addresses
_________________________________________________________________
1 Although not a prerequisite to our holding in Lopez-Osuna, we
observed that the case initiated by the criminal information was given a
different district court docket number (99-CR-0121-J) than the case trig-
gered by the indictment (99-CR-1961-J). See Lopez-Osuna, 2000 WL
33233593, at *5. We note that the same circumstances exist here: the case
initiated by the prosecutor's S 1325 information was given a different dis-
trict court docket number (99-CR-3198-K) than the case triggered by the
S 1326 indictment (00-CR-0017-K).

                               4282
whether certain amounts of time are excludable under the
"other proceedings" provision. See 18 U.S.C. S 3161(h)(1);
Lopez-Osuna, 2000 WL 33233593, at *4-5. Moreover, in
Ramirez-Cortez, the government never filed a separate infor-
mation under either S 1325 or S 1326. Ramirez-Cortez, 213
F.3d at 1151-52. Nor did the defendant waive indictment on
separate charges or agree to proceed with a different case by
way of information. Id. In contrast, the prosecutor in the
instant case filed a criminal information underS 1325, and
Arellano-Riviera knowingly, intelligently, and voluntarily
waived indictment on those charges. As explained above, the
prosecutor's filing of a criminal information on wholly sepa-
rate charges, together with the defendant's willingness to pro-
ceed with the case initiated by the information, trigger the
"other proceedings" exception of the STA. See 18 U.S.C.
S 3161(h)(1)(D); Lopez-Osuna, 2000 WL 33233593, at *4-5.

Arellano-Rivera argues also that unlike the defendant in
Lopez-Osuna, he actually informed the government that he
would not accept its plea offer. Specifically, Arellano-
Rivera's defense counsel claims that on November 9, 1999
(five days after waiving indictment), he unequivocally told
the government that his client would not plead guilty to the
charges in the S 1325 information. Arellano-Rivera asserts
that the STA clock should have been reactivated on that day.
Arellano-Rivera's contention is belied by the evidence in the
record. On December 1, 1999 -- nearly a month after alleg-
edly informing the government that his client would not plead
guilty to the S 1325 charges -- Arellano-Rivera's counsel
asked the judge for a continuance in the case that had been
triggered by the S 1325 information. Defense counsel
expressly stated that he anticipated Arellano-Rivera's case to
be a "disposition" (i.e. guilty plea). See Lopez-Osuna, 2000
WL 33233593, at *2 (defining "disposition hearing " as
"guilty plea"). When the judge asked, "are you reasonably
sure that they will dispo," counsel responded:"Yes, very
sure." This is certainly not an unequivocal statement by
Arellano-Rivera that he would not plead guilty to the S 1325

                               4283
charges; in fact, the contrary is true. We leave for another day
the issue of whether a defendant's unmistakable indication
that he will not plead guilty to charges in a criminal informa-
tion somehow reactivates the STA clock that had been tolled
when the defendant waived indictment on those separate
charges.

In sum, there is no Speedy Trial Act violation under the cir-
cumstances of this case. The goals of the STA would not be
served by allowing a defendant to "game the system" by
reacting favorably to a government's plea offer, waive indict-
ment on lesser charges, and then after reneging on his part of
the bargain, complain that the government failed to obtain an
indictment within the appropriate time frame.

2. Delay in Going to Trial

[3] The STA also requires a defendant's trial to begin
within seventy days of the filing of the information or indict-
ment. See 18 U.S.C. S 3161(c)(1). Once again, the statute
excludes certain periods of delay, see id.S 3161(h)(1)-(9),
including "[a]ny period of delay resulting from other proceed-
ings concerning the defendant." Id. S 3161(h)(1).

Arellano-Rivera contends that his trial did not occur within
the seventy-day window prescribed by the STA. See id.
S 3161(c)(1). Specifically, he points out that the government
first filed an information against him on November 4, 1999,
but that his trial did not commence until March 14, 2000 --
approximately 131 days later. We disagree that any STA vio-
lation occurred.

First, Arellano-Rivera was tried and convicted of violating
S 1326. The prosecutor's information charged Arellano-
Rivera with the wholly separate offense of violatingS 1325.
The relevant charging document for purposes of the seventy-
day time calculation is the grand jury indictment charging
Arellano-Rivera under S 1326. The government obtained this

                               4284
indictment on January 5, 2000, sixty nine days before his trial
began. Therefore, there was no STA violation.

[4] Second, even if we considered theS 1325 information
the relevant charging document, we would still exclude from
the seventy-day time computation periods attributable to
"other proceedings." See id. S 3161(h)(1). As discussed
above, all the time between the filing of the S 1325 informa-
tion and the S 1326 indictment -- from November 4, 1999, to
January 5, 2000 (a total of sixty two days) -- is properly
excluded as delay resulting from "other proceedings." See id.
S 3161(h)(1)(D); Lopez-Osuna, 2000 WL 33233593, at *4-5;
see generally, Section III.A.1, supra. Excluding this time,
Arellano-Rivera's trial commenced sixty nine days after the
filing of the S 1325 information, and therefore there was no
STA violation.

B. Necessity

At trial, Arellano-Rivera sought to introduce evidence that
he claimed would support a necessity defense. The district
court listened to his offer of proof, and concluded that it was
insufficient to establish all the elements of the defense.
Accordingly, the district court precluded Arellano-Rivera
from introducing to the jury evidence of a necessity defense.

"We review de novo the district court's decision to bar a
necessity defense." United States v. Schoon , 971 F.2d 193,
195 (9th Cir. 1992). Reviewing Arellano-Rivera's offer of
proof de novo, we conclude that the district court acted prop-
erly.

[5] A criminal defendant has the right to have a jury resolve
disputed factual issues. However, "[w]here the evidence, even
if believed, does not establish all of the elements of a defense,
. . . the trial judge need not submit the defense to the jury."
United States v. Dorrell, 758 F.2d 427, 430 (9th Cir. 1985).
If the defendant's offer of proof is insufficient as a matter of

                               4285
law to support the proffered defense, "then the trial court
should exclude the defense and the evidence offered in sup-
port." Id.

[6] The defense of necessity is available when a person
commits a particular offense to prevent an imminent harm
which no available options could similarly prevent. See id. at
430-31. We have stated that before a defendant may present
evidence of a necessity defense, his offer of proof must estab-
lish that a reasonable jury could conclude: "(1) that he was
faced with a choice of evils and chose the lesser evil; (2) that
he acted to prevent imminent harm; (3) that he reasonably
anticipated a causal relation between his conduct and the
harm to be avoided; and (4) that there were no other legal
alternatives to violating the law." United States v. De Aguilar,
883 F.2d 662, 693 (9th Cir. 1989). If the "defendant's offer
of proof is deficient with regard to any of the four elements,
the district judge must grant the motion to preclude evidence
of necessity." Id.

The parties initially dispute what materials constitute
Arellano-Rivera's offer of proof. In his post-trial motions and
on appeal, Arellano-Rivera submitted more than 100 pages of
documents that he claims establish the four elements of neces-
sity. The government contends that we should not consider
this information because Arellano-Rivera did not offer it to
the district court in his original offer of proof, and instead
waited until post-trial motions to do so. See Schoon, 971 F.2d
at 195 ("A district court may preclude a necessity defense
where the evidence, as described in the defendants offer of
proof, is insufficient as a matter of law to support the prof-
fered defense.") (emphasis added) (internal quotation omit-
ted). We need not decide this issue, however, because even
after considering all of Arellano-Rivera's evidence, we con-
clude that he fails to make a colorable showing as to all four
elements.

[7] In particular, Arellano-Rivera failed to show that he had
no legal alternatives other than illegally reentering the United

                               4286
States. See De Aguilar, 883 F.2d at 693 (rejecting necessity
defense because legal alternatives were available to redress
defendant's immigration claim). Arellano-Rivera could have
petitioned the Attorney General for temporary admission into
the United States on the basis of his dire medical condition.
Indeed, 8 U.S.C. S 1326(a)(2)(A) explicitly states that an alien
who was previously deported may not reenter the United
States, unless, among other things, "the Attorney General has
expressly consented to such alien's reapplying for admission."
Petitioning the Attorney General for reentry based on an
advanced AIDS condition is a viable legal alternative, an
alternative Arellano-Rivera never attempted. See United
States v. Crown, 2000 WL 709003 (S.D.N.Y. 2000) (preclud-
ing defendant with AIDS from asserting necessity defense to
charge of illegally reentering the United States because offer
of proof failed to establish no legal alternatives); see also
United States v. Diaz-Diaz, 198 F.3d 251 (8th Cir. 1999)
(unpublished) (same).

We are not unsympathetic to Arellano-Rivera's predica-
ment. Nevertheless, he failed to avail himself of a viable legal
alternative, namely petitioning the Attorney General for reen-
try. Arellano-Rivera's speculation, however likely, that the
Attorney General would not parole a previously deported
felon back into the United States on the basis of his advanced
case of AIDS in no way "negate[s] the application process as
a viable legal alternative." Crown, 2000 WL 709003, at *3
n.2.

The district court properly precluded Arellano-Rivera from
introducing evidence of the necessity defense. Because we
conclude that Arellano-Rivera's offer of proof failed to estab-
lish that he had no viable legal alternative to illegally reenter-
ing the United States, we need not consider the other elements
of the necessity defense. However, we do not mean to imply
that necessity would have been a cognizable defense to
unlawful entry even if the Attorney General had denied a
request for parole. If parole is denied, an alien cannot lawfully

                               4287
overrule the Attorney General and parole himself as a matter
of "necessity."

C. Sentencing

Before sentencing, the Presentence Report recommended
increasing Arellano-Rivera's base offense level sixteen levels
on the basis of his prior aggravated felony. See U.S.S.G.
S 2L1.2(b)(1)(A). Arellano-Rivera objected. He first pointed
out that the government neither alleged in the indictment nor
proved at trial beyond a reasonable doubt that he had prior
aggravated felony convictions. Arellano-Rivera then empha-
sized that he never admitted to having prior aggravated felony
convictions. Coupling those two facts, Arellano-Rivera
claimed that the district court could not enhance his offense
level on the basis of prior aggravated felonies. See Apprendi
v. New Jersey, 530 U.S. 466, _______, 120 S.Ct. 2348, 2362-63
(2000) (holding that "[o]ther than the fact of a prior convic-
tion, 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"). The district court
rejected Arellano-Rivera's argument, reasoning that a "prior
conviction is an exception in the Apprendi case."

Whether the district court violated the constitutional rule
expressed in Apprendi is a question of law we review de novo.
See United States v. Nordby, 225 F.3d 1053, 1058-59 (9th Cir.
2000). We conclude that the district court properly sentenced
Arellano-Rivera.

In order to decide this issue, we must clear some preceden-
tial underbrush. In its brief and at oral argument, the govern-
ment called our attention to United States v. Pacheco-Zepeda,
234 F.3d 411 (9th Cir. 2000), amended by United States v.
Pacheco-Zepeda, 2000 WL 33156290 (9th Cir. Feb. 8, 2001).
In Pacheco-Zepeda, the defendant made the same argument
that Arellano-Rivera makes here -- i.e., that a sixteen-level
enhancement based on prior aggravated felonies that were

                               4288
neither admitted to, nor proved at trial beyond a reasonable
doubt violated Apprendi. The first Pacheco-Zepeda court,
under de novo review, concluded that "[a]lthough Apprendi
does refer to the fact that the defendant in Almendarez-Torres
did not challenge the accuracy of his prior convictions,
nowhere does Apprendi limit Almendarez-Torres to cases
where a defendant admits prior aggravated felony convictions
on the record." Pacheco-Zepeda, 234 F.3d at 414-15.

However, after oral argument in this case had been con-
ducted, the Ninth Circuit amended Pacheco-Zepeda . See
Pacheco-Zepeda, 2000 WL 33156290, at *1. The amended
opinion observed that the defendant "did not challenge the use
of his prior aggravated felony convictions to enhance his sen-
tence," and therefore the court employed the extremely defer-
ential plain error standard of review. Id. Here, in contrast,
Arellano-Rivera did challenge the court's use of his prior
aggravated felonies to impose a sixteen-level enhancement.
Accordingly, our review is de novo, and Pacheco-Zepeda,
which reviewed for plain error, is not controlling.

[8] Nevertheless, we adhere to Pacheco-Zepeda's twin
legal conclusions that (1) Apprendi did not overrule
Almendarez-Torres; and (2) "nowhere does Apprendi limit
Almendarez-Torres to cases where a defendant admits prior
aggravated felony convictions on the record." Id. at *4-5.
Simply put, "[u]nder Almendarez-Torres , the government was
not required to include [a defendant's] prior aggravated felony
convictions in the indictment, submit them to a jury, or prove
them beyond a reasonable doubt." Id. at *5.

[9] To the extent that our previous cases have not answered
this precise issue under a de novo standard of review, we do
so here: the district court properly enhanced Arellano-
Rivera's offense level on the basis of prior aggravated felo-
nies even though he did not admit to having committed them,
and even though the government neither alleged them in the
indictment nor proved them at trial beyond a reasonable

                               4289
doubt. Cf. id. (coming to same conclusion under plain error
review); United States v. Parga-Rosas, 2000 WL 33146438
(9th Cir. Feb. 1, 2001) (coming to same conclusion without
identifying scope of review); United States v. Camarillo-
Tello, 236 F.3d 1024, 1028 (9th Cir. 2001) (same).

AFFIRMED.
                               4290


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