Mendoza-Garcia

MEMORANDUM **

Luis Ernesto Mendoza-Garcia appeals his 77-month sentence imposed following a guilty plea conviction for being a deported alien 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.

Mendoza-Garcia contends the district court erred by imposing an aggravated felony enhancement pursuant to Sentencing Guidelines § 2L1.2(b)(1)(A) because his prior felony conviction for violating Cal. Health and Safety Code § 11352(a) is not an aggravated felony in light of our decision in United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir.2001) (en banc). We review for plain error because Mendoza-Garcia failed to raise this issue in the district court. See United States v. Casarez-Bravo, 181 F.3d 1074, 1076 (9th Cir.1999).

In Riverar-Sanchez, we overruled our decision in United States v. Lomas, 30 F.3d 1191 (9th Cir.1994), which held that a conviction under Cal. Health and Safety Code § 11352(a) is an aggravated felony. Rivera-Sanchez, 247 F.3d at 909 (concluding that convictions under Cal. Health and Safety Code §§ 11360(a) and 11352(a) do not facially constitute aggravated felonies because the…