United States v. Martinez-Ventura

240 F. App'x 240

Opinion

MEMORANDUM

**

Raul Martinez-Ventura appeals his jury-trial conviction and 46-month sentence for unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Martinez-Ventura argues that the district court erred when it denied his motion to suppress his post-arrest statements. He is mistaken. First, in light of the totality of the circumstances, we reject Martinez-Ventura’s contention that his arrest was illegal. The record reflects that his wife validly consented to the search of the Martinez-Ventura dwelling. See United States v. Rodríguez-Preciado, 399 F.3d 1118, 1126 (9th Cir.2005). Second, Martinez-Ventura’s contention that the district court erred when it concluded that he voluntarily waived his Miranda rights is without merit. Martinez-Ventura failed to present any evidence that the challenged statements were involuntarily made or coerced.

Martinez-Ventura also claims that the district court erred when it imposed a 16-level upward adjustment to his offense level pursuant to 8 U.S.C. § 1326(b)(2). Specifically, Martinez-Ventura contends that the district court should not have relied on reinstatements of prior removals to determine that he had been removed subsequent to his 1997 conviction for first-degree burglary. This contention is foreclosed by our case law. See Morales-Izquierdo v. Gonzales, 477 F.3d 691, amended on denial of reh’g, 486 F.3d 484, 497-98 (9th Cir.2007); United States v. Luna-Madellaga, 315 F.3d 1224, 1226 (9th Cir.2003); see also United States v. Diaz-Luevano, 494 F.3d 1159, 1161-62 (9th Cir.2007). Likewise foreclosed is Martinez-Ventura’s contention that the district court was not authorized to enhance his sentence based on the court’s finding that he had a prior burglary conviction. See United States v. Beng-Salazar, 452 F.3d 1088, 1091-92 (9th Cir.2006).

Finally, Martinez-Ventura argues that the district court committed an Apprendi error when it found that he was removed subsequent to his 1997 burglary conviction. The fact of such a removal “must be proved beyond a reasonable doubt to a jury or admitted by the defendant.” United States v. Covian-Sandoval, 462 F.3d 1090, 1098 (9th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 1866, 167 L.Ed.2d 355 (2007). Because Martinez-Ventura did not admit to any subsequent removals nor were the removals proved to a jury beyond a reasonable doubt, the district court’s finding of the subsequent removals violated Apprendi. See id.

This error, however, was harmless. See United States v. Zepeda-Martinez, 470 F.3d 909, 913-14 (9th Cir.2006). The government submitted warrants of two subsequent removals — one in 1999 and another in 2000 — that took place after the 1997 conviction. These warrants constitute overwhelming evidence and are “sufficient alone to support a finding of removal beyond a reasonable doubt.” Id.

AFFIRMED.

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