United States v. Arriaga-Arroyo

10 F. App'x 567

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 30, 2001
• Docket: No. 00-10594; D.C. No. CR-00-00070-DWH
• Status: Published

Opinion

MEMORANDUM²

Amado Arriaga-Arroyo appeals the judgment of conviction and 30-month sentence following his guilty plea to a single count of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Arriaga-Arroyo 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 improperly imposed a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) because the government neither pled in the indictment nor established through the guilty plea that Arriaga-Arroyo had been deported subsequent to a prior conviction for an aggravated felony. 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) (holding that 8 U.S.C. § 1326(b)(2) is a sentencing factor and not a separate offense). These arguments are foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), as amended (Feb. 8, 2001), cert. denied, — U.S. —, 121 S.Ct. 1503, — L.Ed.2d — (2001) and by United States v. Castillo Rivera, 244 F.3d 1020 (9th Cir.2001). Accordingly, the sentence is affirmed.

We remand for the limited purpose of directing the district court to amend the judgment to reflect a conviction under 8 U.S.C. 1326(a) only. United States v. Herrera-Blanco, 232 F.3d 715 (9th Cir.2000) (sua sponte remanding to-the district court with directions to correct the judgment of conviction to exclude a reference to 8 U.S.C. § 1326(b)(2)).

AFFIRMED in part and REMANDED in part.

2 . 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.