United States v. Cisneros-Valdez

8 F. App'x 710

Opinion

MEMORANDUM²

Oscar Leonel Cisneros-Valdez appeals the 77-month sentence imposed following his guilty plea to unlawful reentry of a deported alien. Cisneros-Valdez contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), it is illegal to impose a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) based upon a prior felony not pled in the indictment. Cisneros-Valdez 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), because Cisneros-Valdez did not admit to an aggravated felony at his plea hearing. These arguments are foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000), amended (Feb. 8, 2001) (order). United States v. Castillo-Rivera, 244 F.3d 1020,1024 (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-Bianco, 232 F.3d 715, 719 (2000).

AFFIRMED.

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.