United States v. Prado

135 F. App'x 923

Opinion

MEMORANDUM

Footnotes

•

**

1. Prado pleaded guilty to being an alien in the United States following deportation without having obtained permission from the Attorney General to reapply for admission, thus satisfying the elements of 8 U.S.C. § 1326, for which Prado was indicted. A prior aggravated felony conviction is not an element of 8 U.S.C. § 1326; rather, it is a sentencing factor under 8 U.S.C. § 1326(b)(2). See United States v. Maria-Gonzalez, 268 F.3d 664, 670 (9th Cir.2001) (“8 U.S.C. § 1326(b)(2) ‘simply authorizes a court to increase the sentence for a recidivist ... [and] does not define a separate crime.’” (alterations in original) (quoting Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998))). Prado’s argument that Almendarez-Torres has been implicitly overruled by subsequent Supreme Court cases must await explicit confirmation by the Supreme Court. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). Since Prado admitted guilt to each element of 8 U.S.C. § 1326, the district court’s failure to dismiss Prado’s indictment was not error, much less plain error.

2. Consistent with United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc), we “remand to the district court ... for the [limited] purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.” Id. at 1074.

AFFIRMED IN PART; REMANDED IN PART.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.