United States v. Caro-Grimaldo

327 F. App'x 683

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 31, 2008
• Docket: No. 07-50486
• Status: Published

Opinion

MEMORANDUM

**

David Caro-Grimaldo appeals from the 34-month sentence imposed on resentencing following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Caro-Grimaldo contends that the district court erred under Apprendi v. New Jersey, 530 U.S. 466; 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by enhancing his sentence based on his removal subsequent to a prior conviction, when his indictment did not allege the date of the prior removal. He further contends that the error was structural.

As a preliminary matter, we conclude that neither the scope of this Court’s prior remand for resentencing nor the law of the case doctrine precludes review of Caro-Grimaldo’s Apprendi challenge. See United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir.2002) (en banc); see also United States v. Cote, 51 F.3d 178, 181 (9th Cir.1995). However, we reject Caro-Grimaldo’s contention that the failure to allege the date of removal in his indictment constituted structural error, and we conclude that any error was harmless. See United States v. Salazar-Lopez, 506 F.3d 748, 751-56 (9th Cir.2007).

AFFIRMED.

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