United States v. Escobar-Perez

8 F. App'x 709

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2001
• Docket: No. 00-10363; D.C. No. CR-99-00348-PRO
• Status: Published

Opinion

MEMORANDUM²

Marcial Eberth Escobar-Perez appeals the 30-month sentence imposed following his guilty plea to unlawful reentry of a deported alien. Escobar-Perez contends that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) 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). His arguments are foreclosed by this court’s recent decision in 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.