Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Nevada, Howard D. McKibben, District Judge, Presiding.
Before REINHARDT, GRABER, and BERZON, Circuit Judges.
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.
Jose Juan Rangel-Morales appeals his 46-month sentence imposed following his guilty plea conviction for illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm in part and remand in part.
Rangel-Morales contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the existence and nature of a prior felony conviction used to enhance his sentence must be charged in the indictment and proved beyond a reasonable doubt. Rangel-Morales also contends that Apprendi limited Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) to its unique facts.
Rangel-Morales' contentions, however, are foreclosed by our decisions in United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.) (applying plain error review), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) and United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (applying de novo review). The sentence therefore is affirmed.
Nevertheless, we sua sponte remand to the district court with instructions to correct the judgment of conviction to exclude reference to 8 U.S.C. § 1326(b)(2). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062-63 (9th Cir.2000).
AFFIRMED in part, and REMANDED in part.