Opinion
No. 07-50235.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 27, 2008.
USSD-Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Ellis M. Johnston, III, Esq., FDSD-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, Napoleon A. Jones, District Judge, Presiding. D.C. No. CR-04-00482-J.
Before: LEAVY, RYMER and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jesus Adrian Beng-Salazar appeals from the 70-month sentence imposed upon remand, following his jury-trial conviction for being a deported alien 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.
Beng-Salazar contends that the district court erred by subjecting him to an increased statutory maximum sentence pursuant to 8 U.S.C. § 1326(b), based upon the fact of his removal subsequent to an aggravated felony conviction, when that fact was not alleged in the indictment. We conclude that any error in the indictment was harmless. See United States v. Salazar-Lopez, 506 F.3d 748, 755 (9th Cir. 2007).
Beng-Salazar also contends that the district court applied an incorrect legal standard, failed to consider the 18 U.S.C. § 3553(a) factors, and failed to address his mitigation arguments in determining the sentence. Reviewing for plain error, we conclude that Beng-Salazar has failed to show that any error by the district court affected his substantial rights. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008) (holding that the defendant failed to demonstrate plain error warranting relief when he did not show a reasonable probability that he would have received a different sentence).