United States v. Robles-Frias

11 F. App'x 713

Opinion

MEMORANDUM²

German Robles-Frias appeals the sentence imposed following his guilty plea to unlawful reentry of a deported alien. Robles-Frias contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), imposition of a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) based upon a prior felony not pled in the indictment is illegal. Robles-Frias 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), because Robles-Frias did not admit to an aggravated felony at his plea hearing. These arguments are foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), amended (Feb. 8, 2001).

The sentence is AFFIRMED. This matter is REMANDED to the district court with directions to correct the judgment of conviction to exclude the reference to 8 U.S.C. § 1326(b), consistent with United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir.2000). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (2000).

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.