United States v. Pulido-Moreno

U.S. Court of Appeals for the Ninth Circuit
United States v. Pulido-Moreno, 23 F. App'x 880 (9th Cir. 2002)

United States v. Pulido-Moreno

Opinion of the Court

MEMORANDUM **

Sergio Pulido-Moreno appeals the judgment of conviction and 42-month sentence *881following his guilty plea to a single count of being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). Pulido-Moreno 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 by denying Pulido-Moreno a reduction in his sentencing offense level to the two-year maximum set forth in 8 U.S.C. § 1326(a) because he did not admit through his guilty plea that Pulido-Moreno had sustained a prior aggravated felony conviction. He 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). As PulidoMoreno concedes, these arguments are foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.), cert. denied, — U.S. -, 121 S.Ct. 1503, 149 L.Ed.2d 388 (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 *881courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

Reference

Full Case Name
United States v. Sergio PULIDO-MORENO
Cited By
1 case
Status
Published