Flores-Carmona

MEMORANDUM **

Pedro Flores-Carmona appeals his conviction pursuant to guilty plea and his 78-month sentence for unlawful reentry by a deported, removed and/or excluded alien in violation of 8 U.S.C. § 1326 . We affirm.

Flores-Carmona contends that he cannot be subjected to a sentencing enhancement under 8 U.S.C. § 1326 (b) because that statute applies to aliens who have been removed, and not to aliens who have been excluded, as Flores-Carmona was. This contention lacks merit because we have held that there is no legally significant distinction between “deportation,” “exclusion” and “removal” for purposes of the crime defined by 8 U.S.C. § 1326 (a) and the enhancement under section 1326(b). United States v. Luna-Madellaga, 315 F.3d 1224 , 1225 fn. 2 (9th Cir.2003); United States v. Lopez-Gonzalez, 183 F.3d 933, 934-35 (9th Cir.1999).

Flores-Carmona 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 *357 pled in the indictment. As he acknowledges, this issue has been foreclosed by United States v.…