Benavides-Gutierrez

MEMORANDUM **

Evelia Benavides-Gutierrez appeals her conviction by guilty plea and sentence for unlawful re-entry by a deported, removed and/or excluded alien in violation of 8 U.S.C. § 1326 (a). As Benavides-Gutierrez concedes, Ninth Circuit precedent forecloses her argument that imposition of a sentence in excess of Section 1326(a)’s two-year maximum, without proof beyond a reasonable doubt of the removal and preremoval aggravated felony conviction, violates due process under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). See United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000) (concluding that Apprendi’s recidivism exception specifically preserved the holding of Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), that the prior conviction need not be pled in the indictment or proved beyond a reasonable doubt); United States v. Lopez-Gonzalez, 183 F.3d 933, 935 (9th Cir.1999) (concluding that any distinction between deportation and removal is legally insignificant for purposes of § 1326). The judgment is therefore

AFFIRMED.

This disposition is not appropriate for publication and may not be cited…