United States v. Abrica-Aceveda

111 F. App'x 954

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 26, 2004
• Docket: No. 03-30587; D.C. No. CR-03-30028-ALA
• Status: Published

Opinion

MEMORANDUM

**

Roque Abrica-Acevedo appeals the sentence imposed following his guilty plea to illegal reentry after deportation, and possession of a firearm by an illegal alien in violation of 8 U.S.C. § 1326(a) and (b)(2) and 18 U.S.C. § 922(g)(5).

Abrica-Acevedo contends that the district court erred in enhancing his sentence by eight levels based on his prior Oregon conviction for possession of a controlled substance, because that conviction did not constitute an “aggravated felony” under U.S.S.G. § 2L1.2(b)(l)(C) where AbricaAcevedo was only subject to a maximum nine month sentence under Oregon’s Sentencing Guidelines. Abrica-Acevedo’s claim is foreclosed by our recent decision in United States v. Rios-Beltran, 361 F.3d 1204, 1210 (9th Cir.2004) (“[bjecause Oregon’s statutes authorize a maximum term of imprisonment [of more than one year] for [the] conviction, the conviction is for an 'aggravated felony’ within the meaning of U.S.S.G. § 2L1.2(b)(l)(C).”) Abrica-Aceveda’s claim that Blakely v. Washington, - U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) affects his case “is foreclosed by the express terms of Blakely itself.” United States v. Quintana-Quintana, 383 F.3d 1052, 2004 WL 2047358 (9th Cir. Sept.13, 2004).

We REMAND to the district court with directions to correct the judgment to exclude the reference to 8 U.S.C. § 1326(b)(2). See United States v. Herrera-Bianco, 232 F.3d 715, 719 (9th Cir.2000).

AFFIRMED in part and REMANDED in part

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.