
    UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis CHAIRES-RODARTE, Defendant-Appellant.
    No. 99-50514.
    D.C. No. CR 98-00402-CAS.
    United States Court of Appeals, Ninth Circuit.
    Submitted March 6, 2001 .
    Decided March 29, 2001.
    Before KOZINSKI and TALLMAN, Circuit Judges, and FOGEL, District Judge .
    
      
       The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
    
    
      
       Honorable Jeremy D. Fogel, United States District Judge for the Northern District of California, sitting by designation.
    
   MEMORANDUM

Chaires-Rodarte argues that the district court should have allowed him to withdraw his plea and his indictment should have been dismissed because the government previously agreed not to prosecute him for his 1994 illegal reentry. The district court did not clearly err in finding that Chaires-Rodarte failed to prove that there was an agreement between himself and the United States which estopped the United States from prosecuting him. Accordingly, the district court did not abuse its discretion by denying Chaires-Rodarte’s motion to withdraw his plea and dismiss the indictment.

Chaires-Rodarte also asserts, for the first time on appeal, that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred in considering his prior aggravated felony convictions during sentencing. However, Chaires-Rodarte’s argument is explicitly foreclosed by our recent decision in United States v. Pacheco-Zepeda 234 F.3d 411, 413 (9th Cir.2000), amended (Feb. 8, 2001), which considered and rejected an identical claim. See also Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Accordingly, the district court properly enhanced Chaire-Rodarte’s sentence pursuant to 8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(l)(A).

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
     