United States v. Ramirez-Vargas

4 F. App'x 482

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2001
• Docket: No. 00-10335; D.C. No. CR-99-00423-DWH
• Status: Published

Opinion

MEMORANDUM²

Miguel Ramirez-Vargas appeals the judgment of conviction and his 57 month sentence following his guilty plea to a single count of being a deported alien found in the U.S. in violation of 8 U.S.C. § 1326. Ramirez-Vargas contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred by imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) on the basis of prior convictions for aggravated felonies that were not charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt. Ramirez-Vargas also contends that Apprendi renders inapplicable Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that 8 U.S.C. § 1326(b)(2) is a sentencing factor and not a separate offense). These arguments are foreclosed by this court’s recent decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), amended (Feb. 8, 2001). Accordingly, the sentence is affirmed.

We remand for the limited purpose of directing the district court to amend the judgment to reflect a conviction under 8 U.S.C. 1326(a) only. See United States v. Herrera-Blanco, 232 F.3d 715 (9th Cir. 2000) (sua sponte remanding to the district court with directions to correct the judgment of conviction to exclude a reference to 8 U.S.C. § 1326(b)(2)).

AFFIRMED in part and 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.