US v. Valenzuela-Arisqueta, No. 12-10596 (8-1-13)(Callahan with Schroeder and Ripple).

In 1326 indictments, the 9th reiterates that under its precedent, the defendant's prior conviction does not have to be alleged. Almendarez-Torres creates an exception to Apprendi that the 9th still finds to be valid. See US v. Mendoza-Zaragoza, 567 F.3d 431 (9th Cir. 2009). It is up to the Supremes to erase this exception. Affirming the rejection of the plea, the 9th held that a plea must conform to Rule 11, and here it did not because of the failure to state the correct max (20 years). The 9th also concluded that the defendant cannot use an interlocutory appeal, as here, to challenge the rejection of the plea to a 1326(a). The 9th does state that mandamus might be an avenue.