United States v. Rivera-Padilla

MEMORANDUM ^**

Jose Rivera-Padilla appeals the judgment of conviction and 57-month sentence following his guilty plea to a single count of unlawful reentry of deported alien following deportation from the United States in violation of 8 U.S.C. § 1326(a) and (b). Rivera-Padilla contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred in imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a), based upon a prior aggravated felony. He contends that his case is distinguishable from Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001), because he did not admit to an aggravated felony following deportation at his plea hearing and he contested use of his prior felony at sentencing. Rivera-Padilla’s arguments are foreclosed by this court’s recent decision in United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001). 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.

** 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 Ninth Circuit Rule 36-3.