Arce-Rodriguez

MEMORANDUM **

José Arce-Rodriguez appeals his sentence imposed after his guilty plea to “alien in U.S. after deportation” in violation of 8 U.S.C. § 1326 . He contends that his 27-month sentence exceeded the statutory maximum allowed under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because he did not admit, and the government did not prove to a jury, his prior aggravated felony conviction, which the court used to increase his term pursuant to 8 U.S.C. § 1326 (b)(2) and the United States Sentencing Guidelines. He also contends that by requiring the district court to determine the nature of the prior conviction, and not the mere fact of its existence, U.S.S.G. § 2L1.2(b)(l)(C) violates the rule announced in Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004) . These contentions are foreclosed by this court’s case law. See United States v. Moreno-Hernandez, 2005 WL 1560269 , No. 03-30387, slip op. 7773, 7790 n. 8 (9th Cir. July 5, 2005) (amended opinion).

Arce-Rodriguez was sentenced before the United States Supreme Court held in United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 764 , 160 L.Ed.2d 621 (2005) , that…