#### UNITED STATES of America, Plaintiff-Appellee, v. Marco Antonio AVILA, Defendant-Appellant.

No. 00-10595.

D.C. No. CR-00-00226-RLH.

United States Court of Appeals, Ninth Circuit.

Submitted July 9, 2001.*

Decided July 11, 2001.

*646Before KOZINSKI, T.G. NELSON, and TALLMAN, Circuit Judges.

*

 The panel unanimously finds this case suitable for decision without oral argument. *See*Fed. R.App. P. 34(a)(2).

MEMORANDUM **

Marco Antonio Avila appeals his thirty-month sentence imposed following his guilty plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we vacate and remand.

Avila contends, and the government correctly concedes, that the district court erred by enhancing his sentence sixteen levels based on a prior conviction which was not an aggravated felony. Because Avila did not raise this argument in the district court, we review for plain error. *United States v. Casarez-Bravo,*181 F.3d 1074, 1078 (9th Cir.1999). We have previously determined that being an accessory after the fact is not a crime of violence even if the underlying crime was violent. *United States v. Innie,*7 F.3d 840, 850-52 (9th Cir.1993). Avila’s prior conviction for accessory to assault with a deadly weapon is not distinguishable from the offense in *Innie.*His prior conviction therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16. *See Innie,*7 F.3d at 850-52. This error is plain. *See Casarez-Bravo,*181 F.3d at 1078. Because Avila was erroneously subjected to an increased sentence, his substantial rights were affected, and we agree that he is entitled to resentencing.1*See id.*

Avila next contends that under *Apprendi v. New Jersey,*530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the existence and nature of a prior felony conviction used to enhance his sentence must be charged in the indictment and proved beyond a reasonable doubt. Avila’s argument is foreclosed by our decisions in *United States v. Pacheco-Zepeda,*234 F.3d 411, 414 (9th Cir.2000) (applying plain error review), *cert. denied,*— U.S. -, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) and *United States v. Arellano-Rivera,*244 F.3d 1119, 1127 (9th Cir.2001) (applying de novo review).2

*647The mandate shall issue forthwith. Fed. R.App. P. 41(b) and Cir. R. 41-1.

VACATED AND REMANDED FOR RESENTENCING.

**

 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 9 th Cir. R. 36-3.

1

. Because we hold that Avila's prior felony conviction was not a crime of violence, we need not reach his argument that his prior conviction was not an aggravated felony because he was not sentenced to a term of imprisonment of at least one year for a crime of violence. *Cf. Alberto-Gonzalez v. Immigration and Naturalization Service,*215 F.3d 906, 909-10 (9th Cir.2000).

2

. In light of our disposition, we do not reach Avila's contention that his case should be remanded for the district court to correct the judgment by striking any reference to 8 U.S.C. § 1326(b). *But see United States v. Rivera-Sanchez,*222 F.3d 1057, 1062 (9th Cir.2000).