United States v. Gracidas-Ulibarry

22 F. App'x 922

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 2, 2002
• Docket: No. 01-50145; D.C. No. CR-98-00254-T
• Status: Published

Opinion

MEMORANDUM

**

Alfredo Gracidas-Ulibarry appeals his 77-month sentence imposed following our remand for resentencing in United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000) (en banc). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part and remand in part.

Gracidas-Ulibarry was convicted following a bench trial for attempting to reenter the United States after deportation, in violation 8 U.S.C. § 1326. Graeidas-Ulibarry’s sentence was enhanced pursuant to U.S.S.G. § 2L1.2 and he contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), his sentence should not have exceeded the two-year maximum set forth in 8 U.S.C. § 1326(a). Gracidas-Ulibarry also contends that Apprendi limited Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) to its unique facts, and that 8 U.S.C. § 1326(b)(2) is unconstitutional in light of Apprendi.

Contrary to Gracidas-Ulibarry’s assertions, all of his contentions are foreclosed by our decisions in United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir. 2000), cert. denied, — U.S. -, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001), and United States v. Fresnares-Torres, 235 (9th Cir.2000), cert. denied, - U.S. -, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001). See also United States v. Castillo-Rivera, 244 F.3d 1020, 1024-25 (9th Cir.2001); and United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001).

Nevertheless, we sua sponte remand to the district court with instructions to correct the judgment of conviction by striking the reference to 8 U.S.C. § 1326(b)(2). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062-63 (9th Cir.2000).

AFFIRMED in part, and 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.