USA v. Fresnares-Torres

• Decision Date: 15 December 2000
• Docket Number: No. 99-30171,D,FRESNARES-TORRE,99-30171
• Citation: 235 F.3d 481
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SERGIOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 481

235 F.3d 481 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SERGIO FRESNARES-TORRES, Defendant-Appellant.

No. 99-30171

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 2, 2000

Filed October 18, 2000

Order Filed December 15, 2000

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

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

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding. D.C. No.CR 99-05084-RJB

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

ORDER AND AMENDED OPINION

GOODWIN, Circuit Judge:

ORDER

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

Judge McKeown has voted to deny the petition for rehearing en banc, and Judges Goodwin and Judge Alarcon recommended 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 reconsideration of the appeal pending the Supreme Court's action on a petition for certiorari from a Fifth Circuit case, LunaDominguez v. United States, Docket No. 00-5204 is DENIED.

OPINION

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. 1291, and we affirm.

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, Washington. 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 Substance. 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 element of the offense of illegal reentry, and the government's failure to charge this fact in the indictment amounts to reversible error.

The fact of a prior conviction constitutes a penalty factor, and not an element of the offense, under 8 U.S.C. 1326(b)(2), and therefore need not be charged in the indictment. "Other than the fact of 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 reasonable doubt." Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000). In Apprendi, the Supreme Court concluded that "the certainty that procedural safeguards attached to any `fact' of prior conviction . . . mitigated the due process and ...