Santos-Rios

MEMORANDUM **

Federal prisoner Juan Carlos Santos-Rios appeals the forty-six month sentence imposed following his guilty plea to one count of being found in the United States after deportation, in violation of 8 U.S.C. § 1326 (a) and (b). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and affirm in part and remand in part.

Santos-Rios contends the district court erred by enhancing his sentence on the basis of his prior aggravated felony conviction, which was not pleaded in the indictment. Santos-Rios concedes this contention is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.2000), cert. denied, — U.S.-, 121 S.Ct. 1503 , 149 L.Ed.2d 388 (2001) (stating Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) did not overrule Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998)).

Santos-Rios was convicted of violating § 1326(a) and (b). The government concedes it was error for the judgment to refer to § 1326(b). We remand to the district court with instructions to enter a corrected judgment that does not refer to 8 U.S.C. § 1326 (b). See United States v. Herrera-Blanco, 232 F.3d 715,…