Opinion
No. 05-50727.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 28, 2007.
Michael J. Crowley, Esq., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Leila W. Morgan, Esq., Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, William Q. Hayes, District Judge, Presiding. D.C. No. CR-04-02839-1-WQH.
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Ricardo Cuevas-Torres appeals from the judgment and 96-month sentence imposed after his jury-trial 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.
Cuevas-Torres contends the district court erroneously enhanced his sentence beyond the two-year statutory maximum term by finding that Cuevas-Torres was deported subsequent to an aggravated felony conviction, even though the deportation was neither alleged in the indictment nor admitted by Cuevas-Torres. The record belies this contention, because the indictment does allege that Cuevas-Torres was deported on a date subsequent to his aggravated felony conviction. To the extent Cuevas-Torres contends the indictment must allege the exact date of his deportation, that contention is foreclosed by United States v. Martinez-Rodriguez, 472 F.3d 1087, 1094 (9th Cir. 2007) (affirming sentence, given evidence at trial of deportations that occurred only after prior conviction).
Cuevas-Torres's challenges to the constitutionality and applicability of 8 U.S.C. § 1326(b) are foreclosed. See id. at 1092-93; United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir. 2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1866, 167 L.Ed.2d 355 (2007).