United States of America, Plaintiff-appellee, v. Francisco Acevedo-cerbellon, Defendant-appellant, 995 F.2d 233 (9th Cir. 1993)

MEMORANDUM^** 

Appellant Acevedo-Cerbellon pled guilty to illegally entering this country after deportation in violation of 8 U.S.C. § 1326, and received a sentence of 84 months imprisonment. Acevedo-Cerbellon appeals from this sentence, arguing that the sentence exceeded the statutory maximum sentence of two years imprisonment. We have jurisdiction under 28 U.S.C. § 1291, and we vacate the sentence and remand for resentencing.

Title 8 U.S.C. § 1326(a) provides that any alien who has been deported and thereafter is found in the United States "shall be fined ... or imprisoned not more than 2 years, or both." 8 U.S.C. § 1326(a) (1988 & Supp.1991). Section 1326(b) (2) provides for a maximum sentence of fifteen years where the deportation was subsequent to a conviction for an aggravated felony. 8 U.S.C. § 1326(b) (2) (1988). Acevedo-Cerbellon was sentenced under section 1326(b) (2). However, the indictment charged only that he had previously been deported and was found in the United States, and did not include a charge that he had previously been convicted of a felony.

In United States v. Gonzalez-Medina, 976 F.2d 570, 572 (9th Cir. 1992), we held that sections 1326(a), 1326(b) (1) and 1326(b) (2) constitute separate crimes. Therefore, in order to sentence a defendant under section 1326(b) (2), the indictment must charge the elements of that offense, including the existence of a prior aggravated felony. See United States v. Campos-Martinez, 976 F.2d 589, 592 (9th Cir. 1992).

Since the indictment did not charge that Acevedo-Cerbellon was previously convicted of a felony, he should have been sentenced under section 1326(a), not section 1326(b) (2). The appellant's sentence exceeds the statutory maximum of two years imprisonment imposed by section 1326(a). Accordingly, we vacate the sentence and remand for resentencing.

VACATED AND REMANDED.