Cruz-Aguilar v. United States

14 F. App'x 863

Opinion

MEMORANDUM

**

Jose Cruz-Aguilar appeals his sentence imposed after his guilty plea to one count of unlawful reentry of a deported alien (8 U.S.C. §§ 1326(a) & (b)).

Cruz-Aguilar contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred in imposing a sentence in excess of the twoyear maximum set forth in 8 U.S.C. § 1326(a) based upon a prior felony which the indictment did not allege, to which he did not admit, and which was not submitted to a jury and proven beyond a reasonable doubt. He also contends that Apprendi renders inapplicable Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), because he did not admit to an aggravated felony at his plea hearing. His arguments are foreclosed by this court’s recent decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000). United States v. Castillo-Rivera, 244 F.3d 1020, 1024-25 (9th Cir. 2001).

The sentence is AFFIRMED. This matter is REMANDED to the district court with directions to correct the judgment of conviction to exclude the reference to 8 U.S.C. § 1326(b), consistent with United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir.2000). United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000).

AFFIRMED and REMANDED.

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 9th Cir. R. 36-3.