United States v. Flores-Cardona

14 F. App'x 903

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 20, 2001
• Docket: No. 00-30407; D.C. No. CR-00-00078-A-JKS
• Status: Published

Opinion

MEMORANDUM

**

Herman Flores-Cardona appeals his guilty plea conviction and sentence for unlawful re-entry after removal, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Flores-Cardona contends that the district court erred when it increased his base offense level by 16 points because the fact that his prior deportation followed an aggravated felony conviction was neither admitted nor proven beyond a reasonable doubt to a jury. He further contends that Apprendi calls into question the continuing validity of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Flores-Cardona’s contentions, however, are foreclosed by our recent decision in United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.2000). United States v. Castillo Rivera, 244 F.3d 1020 (9th Cir.2001).

The judgment of conviction is AFFIRMED. We REMAND to the district court with directions to correct the judgment of conviction to exclude the reference to 8 U.S.C. § 1326(b). United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (sua sponte remanding to the district court with directions to correct judgment).

AFFIRMED in part, 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 may be provided by 9th Cir. R. 36-3.