United States v. Ortiz-Arroyo

302 F. App'x 565

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 1, 2008
• Docket: No. 07-50405
• Status: Published

Opinion

MEMORANDUM

**

Augustin Jaime Ortiz-Arroyo appeals from the 48-month sentence imposed following his guilty-plea conviction for illegal re-entry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the sentence and judgment, but remand to correct the judgment.

Ortiz-Arroyo contends that the magistrate judge erred by refusing to accept his guilty plea in order to give the government the opportunity to file a superseding indictment. This contention fails because Ortiz-Arroyo waived his right to challenge any defect in his previous plea proceedings by subsequently entering a guilty plea to the superseding indictment. See United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir.2005).

Ortiz-Arroyo also contends that his Sixth Amendment rights were violated by the district court’s enhancement of his sentence under 8 U.S.C. § 1326(b). Because Ortiz-Arroyo admitted the date of his pri- or removal, this contention fails. See United States v. Covian-Sandoval, 462 F.3d 1090, 1097-98 (9th Cir.2006).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand with instructions that the district court delete from the judgment the incorrect reference to § 1326(b). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b) because it is a sentence enhancement and not a separate punishable offense).

AFFIRMED; REMANDED to correct the judgment.

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