Ayon-Encinas

MEMORANDUM **

Horacio Ayon-Encinas appeals his conviction pursuant to guilty plea and his 56-month sentence for unlawful reentry by a deported, removed and/or excluded alien in violation of 8 U.S.C. § 1326 .

Ayon-Encinas contends that he cannot be subjected to a sentencing enhancement under 8 U.S.C. § 1326 (b) because that statute only applies to aliens who have been removed, and not to aliens who have been deported or excluded, as Ayon-Encinas was. This contention lacks merit because we have held that there is no legally significant distinction between “deportation” and “removal” for purposes of the crime defined by 8 U.S.C. § 1326 (a) and the enhancement under section 1326(b). See United States v. Lopez-Gonzalez, 183 F.3d 933, 934-35 (9th Cir.1999).

Ayon-Encinas also contends that the district court violated his rights under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) because 8 U.S.C. § 1326 (b) describes a separate crime from subsection (a), and must be pled in the indictment. As he acknowledges, this issue has been foreclosed by United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001), cert. denied, 535 U.S. 976 , 122 S.Ct.…