Rivera-Garcia

MEMORANDUM **

Miguel Angel Rivera-Garcia appeals his 63-month sentence following his guilty plea conviction for being an alien found in the United States following deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Relying on Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), Rivera-Garcia challenges his conviction on three grounds. First, Rivera contends that 8 U.S.C. § 1326 is unconstitutional because it permits the district court to determine “sentencing factors.” Second, he contends that the district court improperly imposed a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326 (a) because the government neither pleaded in the indictment nor established through the guilty plea that Rivera-Garcia had sustained a prior aggravated felony conviction. Third, Gareia-Rivera contends that following Apprendi his case is distinguished from the specific facts and holding in Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998) (holding that 8 U.S.C. § 1326 (b)(2) is a sentencing factor and not a separate offense). These arguments are…