Gomez-Gomez

MEMORANDUM *

Appellant Javier Gomez-Gomez (“Gomez”) appeals his conviction and 55-month sentence under 8 U.S.C. § 1326 (b)(2) for illegally entering the United States after deportation following conviction for an aggravated felony. He argues that his prior Arizona conviction for attempted aggravated assault is not an aggravated felony under federal law and thus cannot support his sentence.

Gomez entered into a plea agreement that includes a waiver of appeal. He challenges the knowing and voluntary nature of that plea agreement by asserting that the district court violated Federal Rule of Criminal Procedure 11(f).

*538 Gomez argues that the court violated Rule 11(f) by failing to establish the factual basis for his prior conviction. Rule 11(f) requires only that the district court develop the factual basis for elements of the offense, not for sentencing factors. United States v. Alber, 56 F.3d 1106, 1110 (9th Cir.1995). Prior conviction for an aggravated felony is a sentencing factor. Almendarez-Torres v. United States, 523 U.S. 224, 235 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998); see also Apprendi v. New Jersey, 530 U.S. 466, 487-88 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). The…