Gracidas-Ulibarry

MEMORANDUM **

Alfredo Gracidas-Ulibarry appeals his 77-month sentence imposed following our remand for resentencing in United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000) (en banc). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . We affirm in part and remand in part.

Gracidas-Ulibarry was convicted following a bench trial for attempting to reenter the United States after deportation, in violation 8 U.S.C. § 1326 . Graeidas-Ulibarry’s sentence was enhanced pursuant to U.S.S.G. § 2L1.2 and he contends that under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), his sentence should not have exceeded the two-year maximum set forth in 8 U.S.C. § 1326 (a). Gracidas-Ulibarry 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, and that 8 U.S.C. § 1326 (b)(2) is unconstitutional in light of Apprendi .

Contrary to Gracidas-Ulibarry’s assertions, all of his contentions are foreclosed by our decisions in 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…