Mojica-Uriostegui

MEMORANDUM **

Marcelino Mojica-Uriostegui appeals his conviction following entry of a guilty plea to unlawful re-entry by a removed alien, in violation of 8 U.S.C. § 1326 (a) and (b). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm in part and remand in part.

Mojica-Uriostegui contends the district erred by enhancing his sentence on the basis of his prior aggravated felony conviction, which was not pleaded in the indictment. Mojica-Uriostegui concedes this argument is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.) (affirming that all prior convictions “may continue to be treated as sentencing factors” and explicitly rejecting an argument similar to Mojica-Uriostegui’s), cert. denied, — U.S.—, 121 S.Ct. 1503 , 149 L.Ed.2d 388 (2001).

Mojica-Uriostegui, however, was also convicted of violating § 1326(b)(2). We therefore sua sponte remand to the district court with instructions to correct judgment of conviction to exclude reference to 8 U.S.C. § 1326 (b)(2). See United States v. Herrerctr-Blanco, 232 F.3d 715, 719 (2000) (citing United States v.. Rivera-Sanchez, 222 F.3d 1057 (9th Cir.2000)).

AFFIRMED in part; and REMANDED in…