Opinion
No. 09-10055.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 4, 2010.
Steven Erik Seitz, Esquire, U.S. Attorneys Office, San José, CA, for Plaintiff-Appellee.
J. Frank McCabe, Burlingame, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California, Jeremy D. Fogel, District Judge, Presiding. D.C. No. 5:08-CR-00166-JF.
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Alberto Hernandez-Oregel appeals from the 90-month sentence imposed following his guilty-plea 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.
Hernandez-Oregel contends, for the first time on appeal, that the district court erred by enhancing his sentence under 18 U.S.C. § 1326(b) because the government never provided the court with the statute of his prior conviction. We take judicial notice of the abstract of judgment for Hernandez-Oregel's 1981 conviction for assault with a deadly weapon, in violation of California Penal Code § 245(a), a categorical felony crime of violence that qualified Hernandez-Oregel for a sentencing enhancement under section 1326(b). See United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir. 2009); see also United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007).
Hernandez-Oregel also contends that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), should be overruled. As he concedes, this contention fails. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).
Finally, Hernandez-Oregel contends that the sentence is substantively unreasonable. The record reflects that there was no procedural error and that, in light of the totality of the circumstances, the sentence within the Guidelines range is substantively reasonable. See United States v. Carly, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc).
The government's request for judicial notice is granted.