Macias-Rua

*443 MEMORANDUM **

Jesus Armando Macias-Rua appeals his 77-month sentence imposed after his guilty plea to being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1826 . Macias-Rua acknowledges that his argument, that Apprendi v. New Jersey, 580 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) prevented the application of the maximum penalty under 8 U.S.C. § 1326 (b)(2) because he did not admit to having previously committed an aggravated felony, is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), cert. denied, 532 U.S. 966 , 121 S.Ct. 1503 , 149 L.Ed.2d 388 (2001). Macias-Rua raises the contention solely to preserve it in the event the Supreme Court decides differently in the future. Thus, we do not consider it further.

Macias-Rua contends that the district court erroneously concluded under United States v. Lipman, 133 F.3d 726, 730-31 (9th Cir.1998) that it lacked the discretion to depart downward on the grounds that he lacked the ability to culturally assimilate into Mexico. The record in this case, however, shows that Macias-Rua’s cultural assimilation argument was presented to and considered by the…