Opinion
No. 07-10588.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 26, 2008.
Office of the U.S. Attorney, Oakland, CA, for Plaintiff-Appellee.
Neil Rosenbaum, Esq., San Francisco, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California, Claudia Wilken, District Judge, Presiding. D.C. No. CR-07-00285-CW.
Before: ALARCÓN, LEAVY, and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Rolando Baca-Ruiz appeals from the 72-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Baca-Ruiz contends that the district court erred by increasing his maximum sentence under 8 U.S.C. § 1326(b)(2) because the indictment failed to allege his prior date of removal, a prior felony, or that his removal occurred subsequent to a felony conviction. Because Baca-Ruiz failed to object on this ground in the district court, we review for plain error. See United States v. Lopez, 500 F.3d 840, 848 (9th Cir. 2007). We conclude that Baca-Ruiz has not shown that any error affected his substantial rights. See id. at 848; see also United States v. Calderon-Segura, 512 F.3d 1104, 1111 (9th Cir. 2008). To the extent that Baca-Ruiz asks us to overrule our decision in United States v. Salazar-Lopez, 506 F.3d 748 (9th Cir. 2007), we may not do so. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003).
Baca-Ruiz next contends that the district court erred by failing to provide an adequate explanation for the sentence. We conclude that the district court did not procedurally err. See United States v. Carty, 520 F.3d 984, 991-92 (9th Cir. 2008) (en banc).
Finally, Baca-Ruiz's contention that the district court violated Federal Rule of Criminal Procedure 32 also fails. See United States v. Stoterau, 524 F.3d 988, 1011-12 (9th Cir. 2008).