Nunez-Rodelo

*812 MEMORANDUM *

Ramon Nunez-Rodelo appeals his sentence, imposed after a guilty plea for unlawful reentry by a deported, removed, or excluded alien, in violation of 8 U.S.C. § 1326 (a). He asserts that the elements of 8 U.S.C. § 1326 (b)(2) must be pled in the indictment and proved to a jury beyond a reasonable doubt. 1 We disagree and affirm.

The indictment here did not specifically charge that Nunez committed an offense under § 1326(b)(2); it charged him under § 1326(a). As the Supreme Court has clearly held, that was proper because § 1326(b)(2) “is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. Consequently, neither the statute nor the Constitution requires the Government to charge the factor that it mentions, an earlier conviction, in the indictment.” Almendarez-Torres v. United States, 523 U.S. 224, 226-27 , 118 S.Ct. 1219, 1222 , 140 L.Ed.2d 350 (1998).

Nunez argues that Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) changes that. It does not. See United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001); United States v. Pacheco-Zepeda, 234…