Caro-Grimaldo

MEMORANDUM **

David Caro-Grimaldo appeals from the district court’s judgment imposing a 37-month sentence following his guilty-plea conviction for being an illegal alien found in the United States in violation of 8 U.S.C. 1326. We have jurisdiction under 28 U.S.C. § 1291 , and we vacate and remand.

Caro-Grimaldo contends that, under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), the district court erred by upwardly adjusting Caro-Grimaldo’s sentence by eight levels under U.S.S.G. § 2L1.2(b)(l)(C) because the district court improperly found that Caro-Grimaldo was removed subsequent to an aggravated felony. We reject this contention. The court’s reliance on the prior conviction did not result in Apprendi error, and the record reflects that Caro-Grimaldo admitted the timing of his deportation. See United States v. Beltran-Munguia, 489 F.3d 1042, 1053 (9th Cir.2007).

Caro-Grimaldo also contends that 8 U.S.C. § 1326 (b) is unconstitutional because Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), is no longer good law. We reject this contention. See United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th…