United States v. Menera-Ramirez

245 F. App'x 674

Opinion

MEMORANDUM

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Martin Menera-Ramirez appeals from his guilty-plea conviction and 48-month prison sentence for being found in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgement.

Menera-Ramirez contends that because the information did not allege a prior qualifying conviction and he was only charged under § 1326(a), his 48-month sentence violates his due process rights as well as the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). His contentions are foreclosed by United States v. Maciel-Vasquez, 458 F.3d 994, 995-96 (9th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2097, 167 L.Ed.2d 817 (2007).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b)(2). See United States v. Maciel-Vasquez, 458 F.3d at 997.

AFFIRMED; REMANDED to correct the judgment.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.