United States v. Rodriguez-Porcayo

235 F. App'x 610

Opinion

MEMORANDUM

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Martin Rodriguez-Porcayo appeals from his conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Rodriguez-Porcayo contends that the district court denied him due process by relying on an allegedly illegal deportation to increase his sentence pursuant to 8 U.S.C. § 1326(b) and U.S.S.G. § 2L1.2(b)(l)(D). We disagree. See Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir.2007) (en banc); United States v. Diaz-Luevano, No. 05-50129, — F.3d -, 2007 WL 2044256 (9th Cir. July 18, 2007) (per curiam).

Rodriguez-Porcayo also contends that his constitutional rights were violated because the indictment did not charge a prior conviction and he did not admit the prior conviction. This contention is foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006).

Finally, Rodriguez-Porcayo contends that § 1326(b) is unconstitutional on its face because it permits the district court to raise the statutory maximum based on facts found by the judge and neither admitted by the defendant nor found by the jury. This contention also is foreclosed. See United States v. Beng-Salazar, 452 F.3d at 1091.

AFFIRMED.

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