Opinion of the Court — United States v. Cortez-Castro

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Type: Opinion of the Court
Filed: June 19, 2002
Case: United States v. Cortez-Castro
Case status: Decided

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MEMORANDUM ** Victor Cortez-Castro appeals his bench trial conviction and 80-month sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326 (a) and (b)(2). Cortez-Castro 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 him a reduction in his sentencing offense level to the two-year maximum set forth in 8 U.S.C. § 1326 (a) because there was no proof at trial that he had sustained a prior aggravated felony conviction. Cortez-Castro 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 Cortez-Castro concedes, these arguments are foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.), cert. denied, 532 U.S. 966 , 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. United States v. Herrera-Blanco, 232 F.3d 715 (9t…

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