Garcia-Pena

MEMORANDUM

Ricardo Raul Garcia-Pena appeals the judgment of conviction and 70-month sentence following his guilty plea to a single count of being a deported alien found in the United States in violation of 8 U.S.C. § 1326 . We affirm.

Garcia-Pena first contends that in light of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) , the district court improperly imposed a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326 (a) because the government neither pled in the indictment nor established through the guilty plea that Garcia-Pena had sustained an aggravated felony conviction. He also contends that Apprendi renders inapplicable Almendarez-Torres 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). These arguments are foreclosed 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 , 149 L.Ed.2d 388 (2001).

Garcia-Pena’s contention that the district court abused its discretion by denying his request for a downward departure since the United…