United States v. Yedra

5 F. App'x 706

Opinion

MEMORANDUM²

Miguel Angel Yedra appeals from his guilty plea conviction and sentence for unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326(a) & (b)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Yedra contends that his 70-month sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the district court enhanced his sentence based on a prior conviction for an aggravated felony which was not charged in the indictment or proven beyond a reasonable doubt.

Yedra contention is foreclosed by our ruling in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), as amended (Feb.8, 2001) (order). 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.