United States v. Rodriguez-Camargo

206 F. App'x 729

Opinion

MEMORANDUM

**

Jose Luis Rodriguez-Camargo appeals from his 46-month sentence following his guilty-plea conviction 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 the sentence and remand to correct the judgment.

Rodriguez-Camargo contends that the district court committed plain error by applying a 16-level enhancement pursuant to U.S.S.G. § 2L1.2 because his prior California conviction for attempted murder under Cal.Penal Code § § 664, 187(a) is not categorically a crime of violence. We need not decide whether attempted murder under California law is categorically a crime of violence because the record demonstrates that Rodriguez-Camargo admitted to suffering a prior conviction for shooting into an inhabited building, in violation of Cal.Penal Code § 246, which this court has held constitutes a crime of violence for enhancement purposes under § 2L1.2. See United States v. Cortez-Arias, 403 F.3d 1111, 1116 (9th Cir.2005)(“We conclude that shooting at an inhabited dwelling, in violation of California Penal Code section 246, is a ‘crime of violence’ under U.S.S.G. § 2L1.2.”).

Rodriguez-Camargo contends that the district court erred by adding three criminal history points to his criminal history score based on an un-counseled misdemeanor for being an unlicensed driver. We disagree. Rodriguez-Camargo failed to overcome the presumption of regularity of prior conviction. See United States v. Allen, 153 F.3d 1037, 1041 (9th Cir.1998) (stating that a defendant cannot prove a constitutional infirmity of a prior conviction for sentencing purposes merely by pointing to a missing or silent trial transcript, but rather, to overcome the presumption and bar the use of the prior conviction, a defendant must make an affirmative showing). Thus, the district court did not err in including RodriguezCamargo’s unlicensed driver conviction in his criminal history score. See id.

Rodriguez-Camargo contends that 8 U.S.C. § 1326(b) is unconstitutional. This claim is foreclosed by United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006).

Although not raised by the parties, the judgment contains an improper reference to § 1326(b)(2). 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)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete 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 9th Cir. R. 36-3.