U.S. v. Samaniego-Correa

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Carlos Alfredo…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 19, 2001

11 F. App'x 896 (9th Cir. 2001)

Opinion

11 Fed.Appx. 896 (9th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Carlos Alfredo SAMANIEGO-CORREA, Defendant-Appellant. No. 00-10234. D.C. No. CR-99-00395. United States Court of Appeals, Ninth Circuit. April 19, 2001

Submitted March 12, 2001. ^*

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Defendant pled guilty in the United States District Court for the District of Nevada, Philip M. Pro, J., to unlawful reentry of a deported alien, and was sentenced. Defendant appealed. The Court of Appeals held that lack of statutory reference for aggravating felony in presentence report was not plain error.

Affirmed. Appeal from the United States District Court for the District of Nevada, Philip M. Pro, District Judge, Presiding.

Before FERNANDEZ, KLEINFELD, Circuit Judges, and MOSKOWITZ, ^** District Judge.

** The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation.

MEMORANDUM ^***

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Carlos Alfredo Samaniego-Correa appeals the sentence imposed following his guilty plea to a single count of unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326(a) and § 1326(b).

Samaniego-Correa argues that the since the presentence report failed to specify the statutory reference for the aggravating felony for which he was previously convicted, it could not properly be used to enhance his sentence. At sentencing, however, Samaniego-Correa did not object to the presentence report or to the court's finding that he had committed an aggravated felony. We therefore review for plain error. ¹

1 See United States v. Keys, 67 F.3d 801, 812 (9th Cir.1995)rev'd en banc, 95 F.3d 874 (9th Cir.1996), rev'd, 520 U.S. 1226, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997), reinstated in relevant part, 143 F.3d 479, 480 (9th Cir.1998).

We cannot reverse for plain error absent a showing of prejudice ² and Samaniego has never suggested that he

2 See United States v. Potter, 895 F.2d 1231, 1238 (9th Cir.)cert. denied, 497 U.S. 1008, 110 S.Ct. 3247, 111 L.Ed.2d 757 (1990).

Page 898.

was prejudiced by the pre-sentence report. It is clear that under Nevada law the only two possible felonies were both crimes of violence, even if the precise statute was not cited in the presentence report. ³

3 NRS §§ 202.285, 202.287.

AFFIRMED.