Tabares-Rivera

MEMORANDUM **

Pedro Tabares-Rivera appeals the sentence imposed following his guilty plea to being an alien found in the United States after deportation in violation of 8 U.S.C. § 1326 (a). Tabares-Rivera 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. We disagree and affirm.

The indictment here did not specifically charge that Tabares-Rivera committed an offense under § 1326(b)(2); it charged him under § 1326. 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 not 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 , 140 L.Ed.2d 350 (1998).

Tabares-Rivera 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.…