United States v. Jimenez-Carrillo

249 F. App'x 582

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 28, 2007
• Docket: No. 05-50885
• Status: Published

Opinion

MEMORANDUM

**

Lorenzo Jimenez-Carrillo appeals from his jury conviction and the 33-month sentence imposed for illegal reentry following deportation, in violation of 8 U.S.C. § 1326.

Jimenez-Carrillo’s motion to file a pro se reply brief is granted. The Clerk shall file the pro se reply brief received on January 17, 2007.

We reject Jimenez-Carrillo’s contention that the admission of the warrant of deportation violated the Confrontation Clause. See United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir.2005).

Jimenez-Carrillo’s argument that the district court erred in enhancing his sentence based on his prior conviction is foreclosed by United States v. Covian-Sandoval, 462 F.3d 1090, 1096 (9th Cir.2006) (permitting enhancement for a prior conviction), as is his challenge to the constitutionality of 8 U.S.C. § 1326(b), see id. at 1096-97.

We also reject the contention that the district court violated Jimenez-Carrillo’s Fifth Amendment rights by imposing as a condition of supervised release a requirement that he report to the probation office within 72 hours of entering the United States. See United States v. Abbouchi 502 F.3d 850, 859 (9th Cir.2007).

In his pro se brief, Jimenez-Carrillo contends that his prior convictions under California Health and Safety Code Section 11377(a) and California Penal Code Section 273a were not aggravated felony convictions for purposes of 8 U.S.C. § 1326(b). Subsequent to Jimenez-Carrillo’s sentencing, the Supreme Court decided Lopez v. Gonzales, — U.S. -, 127 S.Ct. 625, 633, 166 L.Ed.2d 462 (2006), in which it held that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Because Section 11377(a) does not qualify as a drug trafficking offense under Lopez, we vacate the sentence and remand for resentencing. See United States v. Figueroa-Ocampo, 494 F.3d 1211 (9th Cir.2007) (holding that Lopez applies to criminal sentencing). Additionally, as the government concedes, the conviction under California Penal Code Section 273a was an aggravated felony. See United States v. Hernandez-Castellanos, 287 F.3d 876, 880-881 (9th Cir.2002).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we instruct the district court to delete from any subsequent judgment the incorrect reference to § 1326(b)(2).

VACATED and REMANDED.

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