Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted in the United States District Court for the District of Arizona, Raner C. Collins, J., of illegally reentering United States following deportation, and he appealed. The Court of Appeals held that: (1) district court was entitled to consider for enhancement purposes any prior aggravated felony convictions, even though such conduct was not allegedly charged in indictment with sufficient specificity; (2) district court's decision to add two points for two uncounselled misdemeanor convictions, even if defendant was not informed in the prior prosecutions that the convictions could be used for sentence enhancement purposes at subsequent trials, was not plain error; and (3) Court of Appeals lacked jurisdiction to review district court's decision not to grant a discretionary downward departure, absent evidence that the district court believed it lacked the authority to do so.
Affirmed.
Appeal from the United States District Court for the District of Arizona, Raner C. Collins, District Judge, Presiding.
Before CHOY, SKOPIL, and FERGUSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Manuel Lorenzana-Quiroz appeals the sentence imposed by the district court following his guilty plea to illegal reentry
Page 901.
after deportation in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Lorenzana-Quiroz first challenges his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He argues that 8 U.S.C. § 1326(b)(2)'s sentencing provision for those convicted of an "aggravated felony" is an element of the offense of illegal reentry that must be charged in the indictment per Apprendi. He claims that the indictment in the present case did not allege with sufficient specificity his past commission of an aggravated felony, and that the district court committed reversible error by enhancing his sentence sixteen levels under U.S. S.G. §§ 2L1.2(b)(1)(A). This circuit rejected the same argument in United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000); cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001). We, therefore, conclude that the district court did not err by assessing the sixteen level increase.
Lorenzana-Quiroz also argues, for the first time on appeal, that the district court improperly counted two misdemeanor convictions as part of his criminal history. He contends that he was not represented by counsel when the two convictions were entered and he was not informed that the convictions could be used for sentence enhancement purposes at subsequent trials. Because Lorenzana-Quiroz did not challenge the use of the misdemeanor convictions to enhance his sentence in front of the district court, we review his claim for plain error. United States v. Marin-Cuevas, 147 F.3d 889, 892-93 (9th Cir.1998); United States v. Tisor, 96 F.3d 370, 376 (9th Cir.1996).
We conclude that the district court's decision to add two points for the misdemeanor convictions was not plain error. In Nichols v. United States, the Supreme Court held that an uncounseled misdemeanor conviction that is valid because no prison term was imposed is also valid when used to enhance punishment at a subsequent conviction. 511 U.S. 738, 749, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). The Nichols court also made clear that due process does not require that a defendant be warned that his misdemeanor conviction might be used for enhancement purposes if he is later convicted of another crime. Id. at 748, 114 S.Ct. 1921. Nichols controverts both of Lorenzana-Quiroz's arguments against counting the two misdemeanor convictions.
Finally, Lorenzana-Quiroz argues that the district court should have granted his request for a downward departure based on cultural assimilation. We lack jurisdiction to review a district court's decision not to grant a discretionary downward departure absent evidence that the district court believed it lacked the authority to do so. United States v. Tam, 240 F.3d 797, 805 (9th Cir.2001). The district court did not indicate that it believed it lacked the authority to make a departure for cultural assimilation. Therefore, we lack jurisdiction to review the district court's discretionary refusal to depart downward.
AFFIRMED.