Rivas-Ayala

MEMORANDUM

Alfredo Rivas-Ayala appeals his 77-month sentence imposed following a guilty plea conviction for being an illegal alien found in the United States following deportation. Rivas-Ayala contends that in light of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), it is illegal to impose a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326 (a) based upon a prior felony to which he did not admit, and which was not submitted to a jury and proven beyond a reasonable doubt. Rivas-Ayala also contends that Apprendi renders inapplicable Almendarez-Toms 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), because Rivas-Ayala did not admit to an aggravated felony at his plea healing. These arguments are foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), amended (Feb. 8, 2001) (order). United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir.2001).

AFFIRMED.

. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided…