Chavaria-Angel

MEMORANDUM **

Federal prisoner Carlos Chavaria-Angel appeals the seventy 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 vacate and remand.

Chavaria-Angel contends the district court erred by enhancing his sentence, under U.S.S.G. § 2L1.2(b)(1)(A) (1998), on the basis of his two prior convictions for delivery of a controlled substance, which were not pleaded in the indictment. Chavaria-Angel 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)).

Chavaria-Angel further contends the district court erred by applying the enhancement because the two prior convictions did not facially qualify as aggravated felonies. Because Chavaria-Angel did not timely object, we review for plain error. See United…