United States v. Cuevas-Torres

262 F. App'x 57

Opinion

MEMORANDUM

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Ricardo Cuevas-Torres appeals from the judgment and 96-month sentence imposed after his jury-trial conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Cuevas-Torres contends the district court erroneously enhanced his sentence beyond the two-year statutory maximum term by finding that Cuevas-Torres was deported subsequent to an aggravated felony conviction, even though the deportation was neither alleged in the indictment nor admitted by Cuevas-Torres. The record belies this contention, because the indictment does allege that Cuevas-Torres was deported on a date subsequent to his aggravated felony conviction. To the extent Cuevas-Torres contends the indictment must allege the exact date of his deportation, that contention is foreclosed by United States v. Martinez-Rodriguez, 472 F.3d 1087, 1094 (9th Cir.2007) (affirming sentence, given evidence at trial of deportations that occurred only after prior conviction).

Cuevas-Torres’s challenges to the constitutionality and applicability of 8 U.S.C. § 1326(b) are foreclosed. See id. at 1092-93; 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).

AFFIRMED.

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