United States v. Meza-Elizarraras

206 F. App'x 684

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2006
• Docket: No. 05-50720
• Status: Published

Opinion

MEMORANDUM

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Jorge Meza-Elizarraras appeals from the conviction and 36-month sentence imposed following his guilty plea for being an illegal 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 and remand.

Meza-Elizarraras contends that the district court erred by denying his motion to dismiss the indictment based on invalid prior deportation proceedings. Because Meza-Elizarraras concedes he had actual notice of his 1995 deportation hearing, we conclude that the underlying in absentia deportation order was not “fundamentally unfair.” See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004); 8 U.S.C. § 1326(d). We reject Meza-Elizarraras’s contention that the district court relied on clearly erroneous factual findings in reaching its conclusion. See United States v. Palafox-Mazon, 198 F.3d 1182, 1186 (9th Cir.2000). Accordingly, the conviction is affirmed.

We reject appellant’s contention that the enhancement for his prior felony conviction for a prior crime of violence was unconstitutional. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir .2006).

We also reject the contention that the district court abused its discretion by imposing as a condition of supervised release a requirement that he report to his probation officer within 72 hours of reentering the United States. See United States v. Rodriguez-Rodriguez, 441 F.3d 767, 772-73 (9th Cir.2006).

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)(1). 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 9 th Cir. R. 36-3.