United States v. Ledesma-Aceves

263 F. App'x 655

Opinion

MEMORANDUM

**

Francisco Ledesma-Aceves appeals from his 77-month sentence imposed after his guilty-plea conviction for being an alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Ledesma-Aceves contends that the district court violated his Fifth and Sixth Amendment rights pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the indictment did not allege, he did not admit, and a jury did not find beyond a reasonable doubt, that he had been deported subsequent to his drug trafficking conviction. We disagree.

The record reflects that the dates of Ledesma-Aceves’ prior removal were alleged in the indictment and that he admitted all of these dates in his Rule 11 hearing. See United States v. Salazar-Lopez, 506 F.3d 748, 751-55 (9th Cir.2007) (noting that it is sufficient if the date of removal is alleged in the indictment and admitted by the defendant or found by the jury); see also United States v. Calderon-Segura, 512 F.3d 1104, 1110-11 (9th Cir.2008). Thus, the district court’s application of § 1326(b) did not result in Apprendi error. See Salazar-Lopez, 506 F.3d at 751-55; see also Calderon-Segura, 512 F.3d at 1110-11.

Ledesma-Aceves also contends that Almendarez-Toyres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is invalid and should not be relied upon. He further contends that under the constitutional avoidance doctrine, Almendarez-Tor>~es is limited to challenges to the indictment where the defendant admits the prior conviction during a guilty plea. These contentions are foreclosed. See Salazar-Lopez, 506 F.3d at 751 n. 3.

AFFIRMED.

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