Hernandez-Diaz

MEMORANDUM **

Larry Manuel Hernandez-Diaz appeals his 72-month sentence, imposed after pleading guilty to being an illegal alien and previously-convicted felon found in the United States, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Hernandez-Diaz contends that, in light of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), 8 U.S.C. § 1326 (b) describes a separate crime from subsection (a), as opposed to a sentencing factor. He further contends that the sentencing enhancement under § 1326(b) is limited to those aliens who have been removed, as opposed to deported, excluded, denied admission or voluntarily departed, and cannot apply to him because the indictment only alleged that he had been “deported.”

Hernandez-Diaz’s contentions are unpersu'asive, because we have already determined that Apprendi did not overrule Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998) (holding that § 1326(b)(2) describes sentencing factor and is not an element of § 1326 offense). See also…