Montes-Esparza

MEMORANDUM **

Manuel Montes-Esparza appeals the 38-month sentence imposed after his conviction to one count of attempted re-entry after deportation, in violation of 8 U.S.C. § 1326 , and one count of making a false claim to United States citizenship, in violation of 18 U.S.C. § 911 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Montes-Esparza first contends section 1326 violates the Sixth and Fourteenth Amendments because it uses the outcome of an administrative adjudication as an element of the offense. Reviewing de novo, United States v. Lara-Aceves, 183 F.3d 1007, 1009 (9th Cir.1999), overruled on other grounds by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001) (en banc), we conclude this contention is without merit. The use of a prior administrative adjudication as an element of the offense does not violate due process. Lara-Aceves, 183 F.3d at 1012 .

Montes-Esparza next contends the district court erred in denying his pretrial motion to dismiss the indictment pursuant to Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because his prior aggravated felony conviction was not pleaded in the indictment.…