United States v. Rivera-Preciado

MEMORANDUM ** Alfredo Rivera-Preciado appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326 (a) & (b). Rivera-Preciado contends that, pursuant to the doctrine of avoidance of constitutional doubt, the holding of Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), is limited to the proposition that the fact of prior conviction need not be charged in the indictment where the defendant admits the prior conviction during a guilty plea, and alternately that Almendarez-Torres has effectively been overruled, such that 8 U.S.C. § 1326 (b) is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). As Rivera-Preciado concedes, these contentions are foreclosed. See United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006), cert. denied, — U.S.-, 127 S.Ct. 1866 , 167 L.Ed.2d 355 (2007). In accordance with United States v. Riverar-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). See United States v. Herrerar-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete reference to § 1326(b)) AFFIRMED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.