United States v. Pulido-Noriega

8 F. App'x 708

Opinion

MEMORANDUM²

Jaime Pulido-Noriega appeals his conviction, pursuant to a guilty plea, and sentence for being an alien found in the United States in violation of 8 U.S.C. §§ 1326(a) and (b).

Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Pulido-Noriega 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). Pulido-Noriega’s contentions, however, are foreclosed by our recent decision in United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.2000), amended (Feb. 8, 2001). 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. Herrerar-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.

2 . 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.