United States v. Camarillo-Vasquez

10 F. App'x 578

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 30, 2001
• Docket: No. 00-10293; D.C. No. CR-99-00422-JBR/LRL
• Status: Published

Opinion

MEMORANDUM²

Miguel Camarillo-Vasquez appeals the judgment of conviction and 51-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(a) and (b)(2). Camarillo-Vasquez 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 Camirillo-Vasquez had sustained a prior aggravated felony conviction. 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). 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. See 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.