United State v. Borguez-Borbon

223 F. App'x 672

Opinion

MEMORANDUM

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Adan Borguez-Borbon appeals from a judgment sentencing him to 57 months imprisonment for being an illegal alien found in the United States following a deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm and remand to correct the judgment.

Borguez-Borbon contends that it was plain error for the district court to increase his base offense level by sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(l)(A) because his prior conviction under California Health and Safety Code § 11351 was not categorically a drug trafficking offense. However, this contention is foreclosed. See United States v. Morales-Perez, 467 F.3d 1219, 1221-23 (9th Cir.2006) (holding that both possession of cocaine base with intent to distribute and purchasing cocaine base for purposes of sale are drug trafficking offenses for purposes of U.S.S.G. § 2L1.2(b)(l)(A)).

Borguez-Borbon also contends that 8 U.S.C. § 1326(b)(2) is unconstitutional because it raises the statutory maximum sentence from 2 years to 20 years when a judge, rather than a jury, finds that the defendant’s removal was subsequent to the commission of an aggravated felony. This contention is foreclosed by United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006).

We remand the case to the district court •with instructions that it replace the judgment’s reference to 8 U.S.C. § 1326(a)(b)(2) with a reference to 8 U.S.C. § 1326(a).

AFFIRMED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.