Prado

MEMORANDUM **

1. Prado pleaded guilty to being an alien in the United States following deportation without having obtained permission from the Attorney General to reapply for admission, thus satisfying the elements of 8 U.S.C. § 1326 , for which Prado was indicted. A prior aggravated felony conviction is not an element of 8 U.S.C. § 1326 ; rather, it is a sentencing factor under 8 U.S.C. § 1326 (b)(2). See United States v. Maria-Gonzalez, 268 F.3d 664, 670 (9th Cir.2001) (“8 U.S.C. § 1326(b)(2) ‘simply authorizes a court to increase the sentence for a recidivist ... [and] does not define a separate crime.’” (alterations in original) (quoting Almendarez-Torres v. United States, 523 U.S. 224, 226 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998))). Prado’s argument that Almendarez-Torres has been implicitly overruled by subsequent Supreme Court cases must await explicit confirmation by the Supreme Court. See Agostini v. Felton, 521 U.S. 203, 237 , 117 S.Ct. 1997 , 138 L.Ed.2d 391 (1997). Since Prado admitted guilt to each element of 8 U.S.C. § 1326 , the district court’s failure to dismiss Prado’s indictment was not error, much less plain error.

2. Consistent with United States v.…