The following excerpt is from U.S. v. Perez-Covarrubias, 983 F.2d 1079 (9th Cir. 1993):
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.
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