United States of America v. Ademir Hernandez-Arciga

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADEMIR HERNANDEZ-ARCIGA,
Defendant - Appellant.
No. 10-30321
D.C. No. 3:07-cr-00403
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Ademir Hernandez-Arciga was convicted of federal drug-related offenses,
and he timely appeals his 300-month sentence on the ground that his Fifth and
Sixth Amendment rights were violated by a sentence enhancement for a prior
FILED
JAN 12 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-30321 2
conviction under Cal. Health & Safety Code § 11352(a). We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
Hernandez-Arciga contends that Apprendi v. New Jersey, 530 U.S. 466
(2000) and its progeny require a jury to find that his prior conviction constituted a
“felony drug offense” pursuant to the enhancement statute, 21 U.S.C. §
841(b)(1)(A). This argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 247 (1998). See United States v. Weiland, 420 F.3d 1062, 1079
(2005).
To the extent Hernandez-Arciga argues that the evidence was insufficient to
establish that his prior conviction constituted a felony drug offense under the
enhancement statute, this argument also fails. We review de novo a district court’s
conclusion that a prior conviction qualifies for a sentencing enhancement. United
States v. Almazan-Becerra, 537 F.3d 1094, 1097 (9th Cir. 2008). The district court
had sufficient documentation to establish that Hernandez-Arciga’s prior conviction
was a felony drug offense. See Chuen Piu Kwong v. Holder, __ F.3d __, __, 2011
WL 6061513, at *4–5 (9th Cir. Dec. 7, 2011); United States v. Snellenberger, 548
F.3d 699, 701–02 (9th Cir. 2008) (en banc).
AFFIRMED.

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