Martinez-Acosta

MEMORANDUM

Edgar Martinez-Acosta appeals his 77-month sentence imposed following a guilty plea conviction to one count of unlawful reentry by a deported alien, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm in part and dismiss in part.

Martinez-Acosta contends that the fact of a prior felony conviction, which he did not admit at his plea, is an element of the offense under 8 U.S.C. § 1326 (b)(2) and must be proved beyond a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). We are affirming because Martinez-Acosta’s contention is foreclosed by our decision in United States v. PachecoZepeda, 234 F.3d 411 (9th Cir.2000) (con-eluding that Apprendi preserves the rule in Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), that prior convictions are sentencing factors and not elements of 8 U.S.C. § 1326 ).

Martinez-Acosta further contends that the district court erred: (1) in determining that he suffered no “lost opportunity” to serve his federal sentence concurrently with a prior state sentence due to the government’s alleged one-year…