Rangel-Morales

MEMORANDUM **

Jose Juan Rangel-Morales appeals his 46-month sentence imposed following his guilty plea conviction for illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 , and we affirm in part and remand in part.

Rangel-Morales contends that under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), the existence and nature of a prior felony conviction used to enhance his sentence must be charged in the indictment and proved beyond a reasonable doubt. Rangel-Morales also contends that Apprendi limited Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998) to its unique facts.

Rangel-Morales’ contentions, however, are foreclosed by our decisions in United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.) (applying plain error review), cert. denied, — U.S. —, 121 S.Ct. 1503 , 149 L.Ed.2d 388 (2001) and United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (applying de novo review). The sentence therefore is affirmed.

Nevertheless, we sua sponte remand to the district court with instructions to correct the…