United States v. Pacheco-Camacho , 101 F. App'x 205 ( 2004 )

ORDER and MEMORANDUM ^**

The court sua sponte vacates the memorandum disposition filed on May 18, 2004, as issued in error.

Carlos Manuel Pacheco-Camacho appeals his guilty-plea conviction and 70-month sentence for one count of unlawful reentry into the United States by a deported alien, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and remand in part.

Pacheco-Camacho contends that his guilty plea was involuntary because the district court failed to inform him of an element of his offense; namely that the existence of his prior offense would result in an increased sentence, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This argument is foreclosed by this court’s decision in United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.2000) (holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) did not overrule Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)). Accordingly, the judgment is AFFIRMED.

We REMAND to the district court with directions to correct the judgment to exclude the reference to 8 U.S.C. § 1326(b)(2). See United States v. Herrera-Bianco, 232 F.3d 715, 719 (9th Cir.2000).

AFFIRMED in part and REMANDED in part.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.