United States v. Villegas-Lara

MEMORANDUM²

Miguel Villegas-Lara appeals the 77-month sentence imposed following his guilty plea to unlawful reentry of a deported alien. Villegas-Lara contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), it is illegal to impose a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) based upon a prior felony to which he did not admit. Ville-gas-Lara 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 Ville-gas-Lara 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) (order). United States v. Castillo Rivera, 244 F.3d 10201024 (9th Cir.2001).

We do not review Villegas-Lara’s contention that the district court erred in refusing to grant his request for downward departure based upon cultural assimilation, because the discretionary decision not to depart is unreviewable on appeal. United States v. Webster, 108 F.3d 1156, 1158 (9th Cir.1997).

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). 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.