Barajas-Serrato

MEMORANDUM

Miguel Barajas-Serrato appeals the judgment of conviction and 40-month sentence imposed after his guilty plea to being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326 . Barajas-Serrato contends that in light of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), section 1326(b)(2) is unconstitutional because it allows a court to increase the maximum penalty at sentencing, based on whether a defendant was deported subsequent to a prior conviction for an aggravated felony, without submitting this fact to a jury for proof beyond a reasonable doubt. This contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998) (upholding enhancement where the defendant admitted to underlying felony convictions and subsequent deportation) and by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), as amended (Feb. 8, 2001), cert. denied, — U.S. —, 121 S.Ct. 1503 , — L.Ed.2d — (2001). See United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir.2001).

AFFIRMED.

. This disposition is not appropriate for publication and may not be cited to or…