United States v. Arevalo-Huerta

256 F. App'x 94

Opinion

MEMORANDUM

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Jose Martin Arevalo-Huerta appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a) & (b). Arevalo-Huerta contends that, pursuant to the doctrine of avoidance of constitutional doubt, the holding of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is limited to the proposition that the fact of prior conviction need not be charged in the indictment where the defendant admits the prior conviction and subsequent deportation during a guilty plea, and alternately that Almendarez-Torres has effectively been overruled, such that 8 U.S.C. § 1326(b) is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As Arevalo-Huerta concedes, these contentions are foreclosed. See United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006), cert. denied, — U.S.-, 127 S.Ct. 1866, 167 L.Ed.2d 355 (2007).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete reference to § 1326(b))

AFFIRMED and REMANDED.

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