United States v. Santibanez-Ramirez

10 F. App'x 570

Opinion

MEMORANDUM²

Margarito Santibanez-Ramirez appeals the 79-month sentence imposed following his guilty plea for illegal entry of a deported alien. Santibanez-Ramirez contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), his sentence is illegal because it exceeds the two-year maximum set forth in 8 U.S.C. § 1326(a) based upon a prior felony which was not charged in the indictment and to which he did not admit. Santibanez-Ramirez also contends that Apprendi renders inapplicable Almendarez-Torres v. United States, 523 U.S. 224, 118 , 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 he did not admit to an aggravated felony. His 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) (order). United States v. Castillo Rivera, 244 F.3d 1020, 1024 (9th Cir.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)(2), consistent with United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir.2000). United States v. Herrera-Blanco, 232 F.3d 715, 719 (2000).

AFFIRMED.

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.