United States v. Jimenez-Cardenas

265 F. App'x 452

Opinion

MEMORANDUM

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Ampelio Jimenez-Cardenas appeals from the 40-month sentence imposed following his guilty-plea conviction for being an alien in the United States after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Jimenez-Cardenas contends that 8 U.S.C. § 1326(b) should be construed to require that a defendant admit or a jury find that a defendant was removed subsequent to a prior felony conviction. Even if the district court erred in applying the § 1326(b) enhancement by relying on facts not either admitted by Jimenez-Cardenas or proven to a jury, we conclude that any error was harmless. See United States v. Salazar-Lopez, 506 F.3d 748, 755 (9th Cir.2007). The record includes ample evidence to demonstrate that Jimenez-Cardenas was previously removed subsequent to a felony drug-trafficking conviction. See id.

Jimenez-Cardenas also contends that allowing judicial fact-finding to increase the statutory maximum under § 1326(b) violates the Fifth and Sixth Amendments of the United States Constitution, and that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is invalid. These contentions are foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006).

AFFIRMED.

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