Gonzalez-Rodriguez

MEMORANDUM

Rosalio Gonzalez-Rodriguez entered a guilty plea to an indictment charging him *542 with re-entry after deportation, a violation of 8 U.S.C. § 1326 (a) (as enhanced by 1326(b)). At the time of his plea, he signed a written plea agreement in which he admitted he was unlawfully in the United States and had not obtained consent of the Attorney General before returning. In the written plea agreement, he also admitted he had been previously convicted of an aggravated felony, i.e. possession of marijuana for sale.

On appeal, he argues (1) at the time of his plea agreement the district court failed to inform him that the state crime for which he had been previously convicted was not an aggravated felony, and (2) the district court failed to comply with Federal Rule of Criminal Procedure 11(f) by failing to ascertain whether a factual basis existed for his sentence enhancement under 8 U.S.C. § 1326 (b). Both claims rest on Gonzalez-Rodriguez’s assertion that the possession of marijuana for sale is not an aggravated felony.

The defendant relies upon this court’s en banc decision in United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001), which held that a conviction…