United States v. Rios-Corellia

Full title: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEONARDO RIOS-CORELLIA…

Court: United States Court of Appeals, Ninth Circuit

Date published: Sep 19, 2006

No. 05-50422 (9th Cir. Sep. 19, 2006)

Opinion

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEONARDO RIOS-CORELLIA, Defendant - Appellant. No. 05-50422 United States Court of Appeals, Ninth Circuit September 19, 2006

NOT FOR PUBLICATION

Submitted September 11, 2006^**

** This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Appeal from the United States District Court for the Central District of California Ronald S.W. Lew, District Judge, Presiding, D.C. No. CR-04-01680-RSWL

Before: PREGERSON, T.G. NELSON, and GRABER, Circuit Judges.

MEMORANDUM ^*

* 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.

Leonardo Rios-Corellia appeals from the 46-month sentence imposed after his guilty-plea conviction for being an illegal alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Rios-Corellia§s contentions regarding Almendarez-Torres v. United States, 523 U.S. 224 (1998), and the constitutionality of 8 U.S.C. § 1326(b), are foreclosed by this circuit§s case law. See United States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005) (noting that this court continues to be bound by the Supreme Court§s holding in Almendarez-Torres ).

We conclude that, under plain error review, Rios-Corellia§s condition of supervised release requiring him to submit to drug testing as directed by the probation officer should not be vacated, even if imposing the condition was an error under United States v. Stephens, 424 F.3d 876, 881-83 (9th Cir. 2005). See United States v Maciel-Vasquez, No. 05-50524, 2006 WL 2356014, at *1 (9th Cir. August 16, 2006).

Finally, Rios-Corellia§s challenge to the district court§s condition of supervised release requiring him to report to his probation officer within 72 hours of re-entry into the United States is foreclosed by this court§s opinion in United States v. Rodriguez-Rodriguez, 441 F.3d 767, 772-73 (9th Cir. 2006).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand the case to the district court with instructions that it delete from the judgment the reference to § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)).

AFFIRMED; REMANDED.