United States v. Menera-Ramirez

MEMORANDUM ** Martin Menera-Ramirez appeals from his guilty-plea conviction and 48-month prison sentence for being found in the United States after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm, but remand to correct the judgement. Menera-Ramirez contends that because the information did not allege a prior qualifying conviction and he was only charged under § 1326(a), his 48-month sentence violates his due process rights as well as the rule of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). His contentions are foreclosed by United States v. Maciel-Vasquez, 458 F.3d 994, 995-96 (9th Cir.2006), ce rt. denied, — U.S. -, 127 S.Ct. 2097 , 167 L.Ed.2d 817 (2007). In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b)(2). See United States v. Maciel-Vasquez, 458 F.3d at 997 . *676 AFFIRMED; REMANDED to correct the judgment. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.