United States of America, Plaintiff-appellee, v. Jorge Perez-covarrubias, Defendant-appellant, 983 F.2d 1079 (9th Cir. 1993)

MEMORANDUM^** 

Jorge Perez-Covarrubias appeals his sentence imposed following entry of a guilty plea to being an alien in the United States after deportation, in violation of 8 U.S.C. § 1326. Perez-Covarrubias contends that the district court erred by sentencing him as though he were convicted for a violation of 8 U.S.C. § 1326(b) where the indictment was sufficient only to sustain a conviction under 8 U.S.C. § 1326(a).¹  We have jurisdiction under 28 U.S.C. § 1291 and we vacate the sentence and remand for resentencing.

The legality of a sentence is reviewed de novo. United States v. Hahn, 960 F.2d 903, 907 (9th Cir. 1992).

8 U.S.C. § 1326(a) provides that any alien who has been arrested and deported and thereafter reenters the United States shall be imprisoned for not more than 2 years. 8 U.S.C. § 1326(b) (1) and (2) provides respectively that where the alien's deportation was subsequent to a felony conviction, imprisonment shall not exceed 5 years, and subsequent to an aggravated felony conviction, imprisonment shall not exceed 15 years. We recently have held that where an indictment omits the prior conviction element of subsection 1326(b), a defendant has only been charged under section 1326(a), simple reentry after deportation, and is therefore subject to a maximum of 2 years' imprisonment. United States v. Campos-Martinez, 976 F.2d 589, 591-592 (9th Cir. 1992). In so holding, we explained that "subsections 1326(a) and 1326(b) (1) describe two different crimes with different elements and maximum sentences. Therefore, to charge and sentence a person under section 1326(b) (1), the indictment must include the element that the person was convicted of a prior felony." Id. at 592.

The instant indictment charging a violation of section 1326 made no reference to any prior felony.²  The district court, however, sentenced Perez-Covarrubias to 63 months' imprisonment based on its finding that Perez-Covarrubias' deportation had been subsequent to an aggravated felony.

Because the indictment did not include the element of a prior aggravated felony, Perez-Covarrubias was charged only under section 1326(a) and could have been sentenced to a maximum period of two years' imprisonment. See Campos-Martinez, 976 F.2d at 591-592. In light of our holding, we need not address Perez-Covarrubias' other contentions regarding the applicability of a two-year maximum sentence.

VACATED and REMANDED.