U.S. v. Quintana-Quintana
Decision Date | 13 September 2004 |
Docket Number | C.A. No. 03-50254. |
Citation | 383 F.3d 1052 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Oscar QUINTANA-QUINTANA, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Norma A. Aguilar, Lori Schoenberg, FDCA — Federal Defender's of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Before D.W. NELSON, GIBSON,* and GRABER, Circuit Judges.
Defendant-Appellant Oscar Quintana-Quintana ("Quintana") was convicted of being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. The district court sentenced Quintana to seventy months in custody and three years of supervised release, relying in part on a 16-level sentence enhancement under United States Sentencing Guideline ("U.S.S.G.") § 2L1.2 for Quintana's prior conviction for assault with a deadly weapon under California Penal Code § 245(a)(1). Quintana appealed his sentence, and we affirmed in an unpublished memorandum disposition. In a petition for rehearing and suggestion for rehearing en banc, Quintana now argues that Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), compels us to vacate his sentence because the fact of his prior conviction was not proved to a jury beyond a reasonable doubt.
Quintana's argument is foreclosed by the express terms of Blakely itself. In Blakely, the Supreme Court explicitly preserved its prior holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that a sentencing enhancement based on a defendant's prior conviction does not have to be presented to a jury:
This case requires us to apply the rule we expressed in Apprendi[, 530 U.S. at 490, 120 S.Ct. 2348]: "Other 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."
Blakely, 124 S.Ct. at 2536 (emphasis added). We have repeatedly acknowledged that Apprendi carves out an exception for the fact of a prior conviction. See, e.g., United States v. Fresnares-Torres, 235 F.3d 481, 482 (9th Cir.2000) () (citation omitted); United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000) (), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001). Blakely does nothing to upset this well-settled rule. See United States v. Sanders, 377 F.3d 845, 847 n. 3 (8th Cir.2004) (); United States v. Marseille, 377 F.3d 1249, 1256 n. 14 (11th Cir.2004) () ; United States v. Cooper, 375 F.3d 1041, 1052 n. 3 (10th Cir.2004) ( ).
The members of the panel that decided this case voted unanimously to deny the petition for rehearing. Judge Graber has voted to deny the petition for rehearing en banc. Judges Nelson and Gibson...
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