Opinion
No. 06-10728.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed January 18, 2008.
Ronald C. Rachow, Esq., Reno, NV, for Plaintiff-Appellee.
Michael K. Powell, Esq., Reno, NV, for Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada, Howard D. McKibben, District Judge, Presiding. D.C. No. CR-06-00054-HDM.
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.
Geovanni Rodriguez-Mejia appeals from his sentence of 85 months in prison and three years of supervised release for unlawful re-entry by 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.
Rodriguez-Mejia contends that the district court erred by increasing his sentence pursuant to 8 U.S.C. § 1326(b) because he did not admit, and a jury did not find beyond a reasonable doubt, the temporal relationship between the prior removal and prior conviction. We disagree. Because Rodriguez-Mejia admitted to the date of his prior removal in his Rule 11 hearing, there was no error. See United States v. Salazar-Lopez, 506 F.3d 748, 751-55 (9th Cir. 2007); United States v. Martinez-Rodriguez, 472 F.3d 1087, 1094 (9th Cir. 2007).
Rodriguez-Mejia further contends that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is limited to challenges to the indictment where the defendant admits the prior conviction during a guilty plea. This argument is foreclosed. See Salazar-Lopez, 506 F.3d at 751 n. 3.
Finally, Rodriguez-Mejia contends that in light of subsequent Supreme Court decisions, Almendarez-Torres is not binding precedent and has been overruled. This contention is foreclosed. See Salazar-Lopez, 506 F.3d at 751 n. 3.