United States v. Abrica-Aceveda

MEMORANDUM ^**

Roque Abrica-Acevedo appeals the sentence imposed following his guilty plea to illegal reentry after deportation, and possession of a firearm by an illegal alien in violation of 8 U.S.C. § 1326(a) and (b)(2) and 18 U.S.C. § 922(g)(5).

Abrica-Acevedo contends that the district court erred in enhancing his sentence by eight levels based on his prior Oregon conviction for possession of a controlled substance, because that conviction did not constitute an “aggravated felony” under U.S.S.G. § 2L1.2(b)(l)(C) where AbricaAcevedo was only subject to a maximum nine month sentence under Oregon’s Sentencing Guidelines. Abrica-Acevedo’s claim is foreclosed by our recent decision in United States v. Rios-Beltran, 361 F.3d 1204, 1210 (9th Cir.2004) (“[bjecause Oregon’s statutes authorize a maximum term of imprisonment [of more than one year] for [the] conviction, the conviction is for an 'aggravated felony’ within the meaning of U.S.S.G. § 2L1.2(b)(l)(C).”) Abrica-Aceveda’s claim that Blakely v. Washington, - U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) affects his case “is foreclosed by the express terms of Blakely itself.” United States v. Quintana-Quintana, 383 F.3d 1052, 2004 WL 2047358 (9th Cir. Sept.13, 2004).

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.