United States v. Navarro-Torrez

15 F. App'x 463

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2001
• Docket: No. 01-10044; D.C. No. CR-00-00096-DWH
• Status: Published

Opinion

MEMORANDUM

**

Jose Navarro-Torrez appeals his 70-month sentence imposed following a guilty plea to illegal reentry of a previously deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and remand in part.

Navarro-Torrez contends the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) by enhancing his sentence based on a prior felony conviction which was not alleged in the indictment, proven beyond a reasonable doubt, or admitted on the record. This contention is foreclosed by United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (on de novo review, holding that Apprendi did not overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)); 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) (same, reviewing for plain error). Accordingly, we affirm Navarro-Torrez’s sentence.

We remand for the limited purpose of directing the district court to amend the judgment to exclude reference to 8 U.S.C. § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (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.