Sandoval-Moreno

MEMORANDUM ***

Efren Sandoval Moreno appeals from his conviction and sentence of 77 months for illegal reentry following deportation in violation of 8 U.S.C. § 1326 . Moreno argues that his conviction must be vacated because the district court failed to advise him at his change of plea hearing that he had the continuing right to plead not guilty. He also argues that, in light of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), his sentence must be limited to two years because his prior felony conviction was not alleged in the indictment.

The Federal Rules of Criminal Procedure provide in relevant part:

Fed.R.Crim.P. 11(c)(3). The district court failed to advise Moreno, and determine that he understood, that he had the right to continue to plead not guilty. This violated Rule 11(c). See United States v. Odedo, 154 F.3d 937, 940 (9th Cir.1998).

The government argues that the district court’s error was harmless. We disagree. In order to prove the error was harmless, the government must make “an affirmative showing on the record that the defendant was actually aware of the advisement.” United States v. Graibe, 946 F.2d 1428, 1435 (9th Cir.1991). We…