United States v. Mojica-Uriostegui

17 F. App'x 648

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2001
• Docket: No. 00-10427; D.C. No. CR-00-00001-DWH
• Status: Published

Opinion

MEMORANDUM

**

Marcelino Mojica-Uriostegui appeals his conviction following entry of a guilty plea to unlawful re-entry by a removed alien, in violation of 8 U.S.C. § 1326(a) and (b). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and remand in part.

Mojica-Uriostegui contends the district erred by enhancing his sentence on the basis of his prior aggravated felony conviction, which was not pleaded in the indictment. Mojica-Uriostegui concedes this argument is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.) (affirming that all prior convictions “may continue to be treated as sentencing factors” and explicitly rejecting an argument similar to Mojica-Uriostegui’s), cert. denied, — U.S.—, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

Mojica-Uriostegui, however, was also convicted of violating § 1326(b)(2). We therefore sua sponte remand to the district court with instructions to correct judgment of conviction to exclude reference to 8 U.S.C. § 1326(b)(2). See United States v. Herrerctr-Blanco, 232 F.3d 715, 719 (2000) (citing United States v.. Rivera-Sanchez, 222 F.3d 1057 (9th Cir.2000)).

AFFIRMED in part; and REMANDED in part, with instructions.

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 9 th Cir. R. 36-3.