United States v. Chavez-Ortega

MEMORANDUM²

Ramon Juan Chavez-Ortega appeals the 57-month sentence imposed following his guilty plea to reentry of a deported alien. Chavez-Ortega contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), a prior felony is an element of 8 U.S.C. § 1326(b) which must be pled in the indictment, and that failure to do so renders a sentence in excess of 8 U.S.C. § 1326(a)’s statutory maximum illegal. Chavez-Ortega also contends that Apprendi renders Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), inapplicable to this case because Chavez-Ortega 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).

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 wdth United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir.2000). See United States v. Herrera-Bianco, 232 F.3d 715, 719 (2000).

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 9 th Cir. R. 36-3.