Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant pled guilty in the United States District Court for the District of Alaska, James K. Singleton, Chief Judge, to unlawful re-entry after removal, and was sentenced. Defendant appealed. The Court of Appeals held that district court could increase defendant's base offense level by 16 points, even if the fact that his prior deportation followed an aggravated felony conviction was neither admitted nor proven beyond a reasonable doubt to a jury.
Affirmed in part and remanded in part.
Page 904.
Appeal from the United States District Court for the District of Alaska James K, Singleton, Chief Judge, Presiding.
Before KOZINSKI, T.G. NELSON, and TALLMAN, Circuit Judges.
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.
Herman Flores-Cardona appeals his guilty plea conviction and sentence for unlawful re-entry after removal, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Flores-Cardona 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). Flores-Cardona's contentions, however, are foreclosed by our recent decision in United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.2000). 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. Herrera-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.