Opinion
No. 06-50642.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed January 18, 2008.
Valerie Chu, Esq., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Daniel Casillas, Esq., Law Offices of Daniel Casillas, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Thomas J. Whelan, District Judge, Presiding. D.C. No. CR-05-02291-TJW.
Before: HALL, O'SCANNLAIN, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Martin Paudencio-Castaneda appeals from his sentence of 21 months in prison and three years of supervised release 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.
Paudencio-Castaneda contends that the district court erred by making factual findings concerning the date of removal in order to increase his sentence pursuant to 8 U.S.C. § 1326. We conclude that there was error, but it was harmless. See United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir. 2006).
Paudencio-Castaneda also contends that the district court violated his Sixth Amendment rights by imposing a sentence above the advisory Guidelines range of 6-12 months pursuant to U.S.S.G. § 2L1.2 based on facts that were neither found by a jury nor admitted by him. This contention lacks merit. See United States v. Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
In addition, Paudencio-Castaneda contends that it was error for the district court to increase his sentence pursuant to 8 U.S.C. § 1326(b) because the indictment did not allege that he was previously removed subsequent to his prior conviction. We conclude there was error, but it was harmless. See United States v. Salazar-Lopez, 506 F.3d 748, 751-55 (9th Cir. 2007).
The Government's motion to supplement the record is denied.