United States v. Rivera-Arreaga

235 F. App'x 567

Opinion

MEMORANDUM

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Axel Garado Rivera-Arreaga appeals from the 70-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Rivera-Arreaga contends that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court was precluded from applying a 16-level upward adjustment under U.S.S.G. § 2L1.2(b)(l)(D), because he did not admit the date of his removal and it was not proven to a jury beyond a reasonable doubt. We hold that any such error was harmless beyond a reasonable doubt. See United States v. Zepeda-Martinez, 470 F.3d 909, 913-14 (9th Cir.2006).

Rivera-Arreaga also contends that the district court erred in sentencing him above the statutory maximum term of two years based on a prior conviction that was not admitted or found beyond a reasonable doubt. He contends that Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is no longer good law. We reject this contention. See United States v. Martinez-Rodriguez, 472 F.3d 1087, 1092-93 (9th Cir.2007).

Rivera-Arreaga finally contends that his sentence must be vacated because 8 U.S.C. § 1326(b) is facially unconstitutional. This contention is foreclosed by United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005), and United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005). Accordingly, we affirm.

AFFIRMED.

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