United States v. Marroquin-Gonzalez

205 F. App'x 628

Opinion

MEMORANDUM

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Francisco Marroquin-Gonzalez appeals the sentence following his guilty plea to being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. §§ 1326(a), (b)(2).

Marroquin-Gonzalez contends that the district court erred in considering his prior conviction for purposes of enhancing his sentence, in that the fact of the prior offense was neither admitted, nor found by a jury beyond a reasonable doubt. This contention is foreclosed. See United, States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (noting that we continue to be bound by the Supreme Court’s holding in Almendarez-Torres, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that a judge may enhance a sentence on the basis of prior convictions, even if the fact of those convictions was not found by a jury beyond a reasonable doubt); see also United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006) (rejecting the contention that the holding of Almendarez-Torres is limited to cases where a defendant has admitted his prior convictions during a guilty plea).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)).

AFFIRMED; REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.