green
Positive treatment
Quoted verbatim 6×
62.6 score
“the district court was entitled to consider any prior aggravated felony convictions in sentencing pacheco-zepeda for illegal re-entry even though such conduct had not been charged in the indictment, presented to a jury, and proved beyond a reasonable doubt.”
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Top citers, strongest first. 50 distinct citers.
How cited ↗
discussed
Cited as authority (verbatim quote)
United States v. Weiland
unless and until almendarez-torres is overruled by the supreme court, we must fol- low it.
examined
Cited "see"
United States v. Roberto Echavarria-Escobar, Aka, Roberto Escobar Aka, Baudilo Echeveria Aka, Roberto Car Escobar-Rodriguez
(3×)
also: Cited as authority (rule)
See Pacheco-Zepeda, 234 F.3d at 414 (holding that although Almendarez-Torres may be overruled, “[ujnless and until Almendarez-Torres is overruled by the Supreme Court, we must follow it”); see also Agostini v. Felton, 521 U.S. 203, 237 , 117 S.Ct. 1997 , 138 L.Ed.2d 391 (1997) (directing appellate courts to “ ‘leav[e] to this Court the prerogative of overruling its own decisions’ ” (citation omitted)). *1272 We hold, therefore, that the district court’s enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A) did not violate Apprendi IY.
discussed
Cited as authority (verbatim quote)
United States v. Antonio Reyes-Pacheco, AKA Antonio Reyes Pacheco
(2×)
also: Cited "see"
unless and until almendarez-torres is overruled by the supreme court, we must follow it.
discussed
Cited as authority (verbatim quote)
United States v. Alfred Arnold Ameline
(2×)
also: Cited as authority (rule)
speculation does not permit us to ignore controlling supreme court authority.
examined
Cited as authority (verbatim quote)
United States v. Palencia-Ramirez
(2×)
also: Cited as authority (rule)
the district court was entitled to consider any prior aggravated felony convictions in sentencing pacheco-zapeda for illegal reentry even though such conduct had not been charged in the indictment ____
discussed
Cited as authority (quoted)
United States v. Pintado-Isiordia
almendarez-torres may eventually be over- ruled. but such speculation does not permit us to ignore con- trolling supreme court authority.
examined
Cited as authority (quoted)
United States v. Shannon Wayne Tighe
(6×)
also: Cited as authority (rule), Cited "see, e.g."
the district court was entitled to consider any prior aggravated felony convictions in sentencing pacheco-zepeda for illegal re-entry even though such conduct had not been charged in the indictment, presented to a jury, and proved beyond a reasonable doubt.
discussed
Cited as authority (rule)
(HC) Wells v. Lizarraga
It need not be alleged in the indictment and 11 proven to a jury, but is determined by the court after the defendant has been convicted”) (citations 12 omitted); United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir. 2000) (same). 13 Nevertheless, a criminal defendant is entitled to reasonable notice and an opportunity to be heard 14 on a recidivism charge.
discussed
Cited as authority (rule)
United States v. Manuel Guerrero-Jasso
(2×)
As the date of a prior conviction need not itself be proven beyond a reasonable doubt, see United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000) (explaining that Apprendi preserved the rule of Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), and “carved out an exception [to the Apprendi rule] for ‘prior convictions’”), admission or proof of the removal date is sufficient to establish eligibility for the § 1326(b) enhancement.
cited
Cited as authority (rule)
United States v. Victor Valenzuela-Arisqueta
See 523 U.S. 224 [ 118 S.Ct. 1219 ] (1998); United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000).
discussed
Cited as authority (rule)
State v. McKague
Adhering to this well-settled principle, the Ninth Circuit has confirmed that the Supreme Court has chosen not to overrule Almendarez-Torres “and [instead has] unmistakably carved out an exception for 'prior convictions.’ ” United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000) (quoting Apprendi, 530 U.S. at 488-92 ), cert. denied, 532 U.S. 966 (2001). 14 ¶48 Similarly, in 2003 our Supreme Court definitively held that neither the United States Constitution nor the Washington Constitution requires a jury, rather than a judge, to find the existence of prior convictions beyond …
discussed
Cited as authority (rule)
State v. McKague
(2×)
also: Cited "see, e.g."
Adhering to this well-settled principle, the Ninth Circuit has confirmed that the Supreme Court has chosen not to overrule Almendarez-Torres "and [instead has] unmistakably carved out an exception for `prior convictions.'" United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000) (quoting Apprendi, 530 U.S. at 488-92 , 120 S.Ct. 2348 ), cert. denied, 532 U.S. 966 , 121 S.Ct. 1503 , 149 L.Ed.2d 388 (2001). [14] ¶ 48 Similarly, in 2003 our Supreme Court definitively held that neither the United States Constitution nor the Washington Constitution requires a jury, rather than a judge, to …
discussed
Cited as authority (rule)
State v. McKAGUE
(2×)
also: Cited "see, e.g."
Adhering to this well-settled principle, the Ninth Circuit has confirmed that the Supreme Court has chosen not to overrule Almendarez-Torres "and [instead has] unmistakably carved out an exception for `prior convictions.'" United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000) (quoting Apprendi, 530 U.S. at 488-92 , 120 S.Ct. 2348 ), cert. denied, 532 U.S. 966 , 121 S.Ct. 1503 , 149 L.Ed.2d 388 (2001). [14] ¶ 48 Similarly, in 2003 our Supreme Court definitively held that neither the United States Constitution nor the Washington Constitution requires a jury, rather than a judge, to …
discussed
Cited as authority (rule)
Langley v. Carey
See Almendarez-Torres v. United States, 523 U.S. 224, 243-44 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998); United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.2001), cert. denied, 532 U.S. 966 , 121 S.Ct. 1503 , 149 L.Ed.2d 388 (2001) (holding that Almendarez-Torres remains good law after Apprendi and provides that prior convictions, whether or not admitted by the defendant on the record, are sentencing factors rather than elements of the crime).
cited
Cited as authority (rule)
United States v. Melara-Guzman
United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005); United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2001).
discussed
Cited as authority (rule)
Boultinghouse v. Hall
United States v. Wetland, 420 F.3d 1062 , 1079-80 n. 16 (9th Cir.2005), cert. de nied, 547 U.S. 1114 , 126 S.Ct. 1911 , 164 L.Ed.2d 667 (2006) (Ninth Circuit “bound to follow” Almendarez-Torres "until it is explicitly overruled by [the Supreme Court]”); 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) ("[u]nless and until Almendarez-Torres is overruled by the Supreme Court, we must follow it.”) (citations omitted).
discussed
Cited as authority (rule)
McKettrick v. Yates
See also Almendarez-Torres v. United States, 523 U.S. 224, 239-47 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998) (rejecting the petitioner’s claim that, because his prior felony conviction increased the maximum sentence to which he was exposed, his recidivism qualified as an “element” of the current offense which the Government was constitutionally required to state in the indictment and prove to the jury beyond a reasonable doubt); United States v. Pacheco-Zepeda, 234 F.3d 411, 413-15 (9th Cir.2000) (rejecting the defendant’s argument that Apprendi limited AlmendarezTorres to cases where a…
discussed
Cited as authority (rule)
State v. Fewell
Quoting the Ninth Circuit Court of Appeals in United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2001), the Ivory court explained: "`It is true that in Apprendi , the Court expressed reservations about Almendarez-Torres . [Citation omitted.] However, the Court reasoned that any due process or Sixth Amendment concernsarising out of the judicial determination of a "fact" that increased punishment beyond the statutory maximumwere mitigated in Almendarez-Torres by "[b]oth the certainty that procedural safeguards attached to any `fact' of prior conviction, and the reality that [the def…
cited
Cited as authority (rule)
United States v. Sandoval-Hernandez
“Unless and until Almendarez-Torres is overruled by the Supreme Court, we must follow it.” United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000).
discussed
Cited as authority (rule)
United States v. Cervantes-Rubio
Almendarez-Torres v. United States, 523 U.S. 224, 226-27 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998). “[U]nless and until the Supreme Court expressly overrules it, Almendarez-Torres controls [in cases such as this].” United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2001) (emphasis added).
discussed
Cited as authority (rule)
Van Norman v. Schriro
Id.; United States v. Maria-Gonzalez, 268 F.3d 664, 670 (9th Cir.2001)(holding prior aggravated felony conviction did not constitute an element of the offense where base sentence for illegally reentering the United States following deportation is enhanced if deportation was subsequent to conviction for aggravated felony); United States v. Castillo-Rivera, 244 F.3d 1020, 1025 (9th Cir.2001)(holding the district court could consider defendant’s prior conviction in imposing sentence enhancement even though such conduct had not been charged in the indictment, presented to the jury, and proved be…
discussed
Cited as authority (rule)
United States v. Moriel-Luna
Moriel’s argument that 8 U.S.C. § 1326 (b) is unconstitutional because it allows a sentence to be increased due to a prior conviction not pleaded or proven to a jury is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir .2000).
discussed
Cited as authority (rule)
United States v. Alejandro Gomez-Mendez
See, e.g., United States v. Ochoa-Gaytan, 265 F.3d 837 , 840 n. 1, 845-46 (9th Cir.2001); United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.), cert, denied, 532 U.S. 966 , 121 S.Ct. 1503 , 149 L.Ed.2d 388 (2001). 10 IV Finally, we consider Gomez-Mendez’s argument that the district court erred in failing to apply an additional one level reduction for timely acceptance of responsibility under U.S.S.G. § 3El.l(b) 11 *607 because the government improperly refused to file a motion under that provision.
discussed
Cited as authority (rule)
United States v. Gomez-Mendez
See, e.g., United States v. Ochoa-Gaytan, 265 F.3d 837 , 840 n.1, 845- 46 (9th Cir. 2001); United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.), cert. denied, 532 U.S. 966 (2001).10 9 The 1996 amendment to subsection (b)(2) simply replaced the term “deportation” with “removal” to reflect new terminology introduced by Illegal Immigration Reform and Immigrant Responsibility Act, Pub.
cited
Cited as authority (rule)
United States v. Ballesteros-Selinger
See United States v. Martinez-Martinez, 295 F.3d 1041, 1043 (9th Cir.2002); United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000). .
cited
Cited as authority (rule)
United States v. Martinez-Carrillo
See United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005); United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir. 2000).
discussed
Cited as authority (rule)
United States v. Jose Flores-Sanchez, A.K.A. Jose Mendoza-Sanchez
See, e.g., United States v. Beng-Salazar, 452 F.3d 1088, 1090-91 (9th Cir.2006) (citing United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005)); United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir. 2000) (as amended).
discussed
Cited as authority (rule)
United States v. Flores-Sanchez
Because Almendarez-Torres and our decisions applying it clearly permit a sentencing court to make this finding, we reject Sanchez’s arguments to the con- trary on the basis that he has “disputed,” rather than merely “not admitted,” his prior convictions. [9] Independent of his failed jury determination argument, Sanchez argues that the government was required to prove the 3 See, e.g., United States v. Beng-Salazar, 452 F.3d 1088, 1090-91 (9th Cir. 2006) (citing United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir. 2005)); United States v. Pacheco-Zepeda, 234 F.3d 411, 414-1…
cited
Cited as authority (rule)
United States v. David Martinez-Rodriguez
Reyes-Pacheco, 248 F.3d at 945 ; United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000).
cited
Cited as authority (rule)
United States v. Martinez-Rodriguez
Reyes- Pacheco, 248 F.3d at 945 ; United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000).
discussed
Cited as authority (rule)
United States v. Mendez-Mejia
We affirmed in our prior disposition the enhancement of appellant’s sentence based on a conviction that was neither pled nor proved to a jury, relying on United States v. Quintanar-Quintana, 383 F.3d 1052 (9th Cir.2004), cert. denied, 543 U.S. 1130 , 125 S.Ct. 1100 , 160 L.Ed.2d 1085 (2005) (holding that Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004) did not overrule Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998)), United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (on de novo review, holding that Ap…
discussed
Cited as authority (rule)
United States v. Ceniceros-Flores
We affirmed in our prior disposition the enhancement of appellant’s sentence based on a conviction that was neither pled nor proved to a jury, relying on United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004), cert. denied, 543 U.S. 1130 , 125 S.Ct. 1100 , 160 L.Ed.2d 1085 (2005) (holding that Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004) did not overrule Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998)), United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (on de novo review, holding that App…
discussed
Cited as authority (rule)
United States v. Vega-Leon
We affirmed in our prior disposition the enhancement of appellant’s sentence based on a conviction that was neither pled nor proved to a jury, relying on United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004), cert. denied, 543 U.S. 1130 , 125 S.Ct. 1100 , 160 L.Ed.2d 1085 (2005) (holding that Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004) did not overrule Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998)), United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (on de novo review, holding that App…
discussed
Cited as authority (rule)
United States v. Rios
We affirmed in our prior disposition the enhancement of appellant’s sentence based on a conviction that was neither pled nor proved to a jury, relying on United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004), cert. denied, 543 U.S. 1130 , 125 S.Ct. 1100 , 160 L.Ed.2d 1085 (2005) (holding that Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004) did not overrule Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998)), United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (on de novo review, holding that App…
cited
Cited as authority (rule)
United States v. David Martinez-Rodriguez
Reyes-Pacheco, 248 F.3d at 945 ; United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000).
cited
Cited as authority (rule)
United States v. Martinez-Rodriguez
Reyes- Pacheco, 248 F.3d at 945 ; United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000).
discussed
Cited as authority (rule)
United States v. Perez-Gonzalez
In United States v. Ochoa-Gaytan, 265 F.3d 837 (9th Cir.2001) we held that Apprendi “unmistakably carved out an exception for ‘prior convictions’ that specifically preserved the holding of Almendarez-Torres.” 265 F.3d at 845-46 , quoting United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000).
discussed
Cited as authority (rule)
United States v. Luna-Rodriguez
In contrast to Luna-Rodriguez’s assertions, in United States v. Ochoa-Gaytan, we held that Apprendi “unmistakably carved out an exception for ‘prior convictions’ that specifically preserved the holding of Almendarez-Torres. ” 265 F.3d 837, 845-46 (9th Cir.2001), quoting United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000).
discussed
Cited as authority (rule)
United States v. Meza-Estrada
See United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005) (rejecting the contention that the government is required to plead prior convictions in the indictment and prove them beyond a reasonable doubt to a jury unless defendant admits the prior conviction in his guilty plea); United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005) (noting that we continue to be bound by the Supreme Court’s holding in Almendarez-Torres); United States v. Castillo-Rivera, 244 F.3d 1020 , 102A-25 (9th Cir.2001) (rejecting the contention that the fact of the temporal relationship betw…
cited
Cited as authority (rule)
United States v. Jose Covian-Sandoval
See 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998); United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000).
discussed
Cited as authority (rule)
United States v. Covian-Sandoval
See 523 U.S. 224 (1998); United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir. 2000). [11] Covian argues that the Supreme Court has effectively overruled Almendarez-Torres, and, relatedly, that recent Supreme Court decisions create constitutional doubt that should compel us to limit the holding of Almendarez-Torres to cases in which the defendant admits the prior conviction during a guilty plea.2 Covian also argues that Apprendi ren- ders unconstitutional the provisions of § 1326 that allow a judge to increase the maximum sentence from two years to twenty.
discussed
Cited as authority (rule)
United States v. Orozco-Quiroz
United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000); see also Hohn v. United States, 524 U.S. 236, 252-53 , 118 S.Ct. 1969 , 141 L.Ed.2d 242 (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”); Agostini v. Felton, 521 U.S. 203, 237 , 117 S.Ct. 1997 , 138 L.Ed.2d 391 (1997) (lower courts should “leav[e] to this Court the prerogative of overruling its own decisions”).
cited
Cited as authority (rule)
United States v. Ortega-Ortega
United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.2000).
discussed
Cited as authority (rule)
United States v. Juan Espinoza-Cano
United States v. Weiland, 420 F.3d 1062, 1079, n. 16 (9th Cir.2005); United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.2004); United States v. Pacheco-Zepeda, 234 F.3d 411, 412 (9th Cir.2000).
discussed
Cited as authority (rule)
United States v. Espinoza-Cano
United States v. Weiland, 420 F.3d 1062, 1079, n.16 (9th Cir. 2005); United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004); United States v. Pacheco-Zepeda, 234 F.3d 411, 412 (9th Cir. 2000).
discussed
Cited as authority (rule)
United States v. Santiago-Pacheco
See, e.g., United States v. Lopez-Torres, 443 F.3d 1182, 1185 (9th Cir.2006); United States v. Weiland, 420 F.3d 1062 , 1079 & n. 16 (9th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1911 , 164 L.Ed.2d 667 (2006); United States v. Yanez-Saucedo, 295 F.3d 991, 993 (9th Cir.2002); United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001); United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000).
discussed
Cited as authority (rule)
United States v. Ramirez-Valerio
See United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005) (noting that the court continues to be bound by the Supreme Court’s holding in Almendarez-Torres); see also United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005) (rejecting contention that the government is required to plead prior convictions in the indictment and prove them to a jury unless the defendant admits the prior convictions); United States v. Ochoa-Gaytan, 265 F.3d 837, 845-46 (9th Cir.2001) (holding that Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), carved out a…
cited
Cited as authority (rule)
United States v. Lopez-Caballero
This contention is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000) (as amended) (holding that prior convictions “may continue to be treated as sentencing factors”).
discussed
Cited as authority (rule)
United States v. Alvarado
(2×)
also: Cited "see"
United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005) (“Although recent Supreme Court jurisprudence has perhaps called into question the continuing viability of Almendarez-Torres , we are bound to follow a controlling Supreme Court precedent until it is explicitly overruled by that Court.”) We have held several times that Almendarez-Torres remains good law, e.g., United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.2004); United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000), and we adhere to that rule.
cited
Cited as authority (rule)
United States v. Ballesteros-Selinger
See United States v. Martinez-Martinez, 295 F.3d 1041, 1043 (9th Cir.2002); United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000).
Retrieving the full opinion text from the archive…
United States
v.
Gabriel Pacheco-Zepeda
v.
Gabriel Pacheco-Zepeda
99-50720.
Court of Appeals for the Ninth Circuit.
Dec 6, 2000.
Published
Citer courts: Ninth Circuit (2)
234 F.3d 411 (9th Cir. 2000)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
GABRIEL PACHECO-ZEPEDA, Defendant-Appellant.
No. 99-50720
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted September 13, 2000--Pasadena, California
Filed December 6, 2000
NOTE: SEE AMENDED OPINION OF FEBRUARY 8, 2001