Opinion
No. 06-50011.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 1, 2007.
Becky S. Walker, Esq., Julie J. Shemitz, Esq., USLA — Office of the U.S. Attorney Criminal Division, Los Angeles, CA, for Plaintiff-Appellee.
James H. Locklin, Esq., FPDCA — Federal Public Defender's Office, Los Angeles, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Central District of California; Margaret M. Morrow, District Judge, Presiding. D.C. No. CR-04-01653-MMM.
Before: BEEZER, FERNANDEZ, and McKEOWN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Adan Borguez-Borbon appeals from a judgment sentencing him to 57 months imprisonment for being an illegal alien found in the United States following a deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm and remand to correct the judgment.
Borguez-Borbon contends that it was plain error for the district court to increase his base offense level by sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because his prior conviction under California Health and Safety Code § 11351 was not categorically a drug trafficking offense. However, this contention is foreclosed. See United States v. Morales-Perez, 467 F.3d 1219, 1221-23 (9th Cir. 2006) (holding that both possession of cocaine base with intent to distribute and purchasing cocaine base for purposes of sale are drug trafficking offenses for purposes of U.S.S.G. § 2L1.2(b)(1)(A)).
Borguez-Borbon also contends that 8 U.S.C. § 1326(b)(2) is unconstitutional because it raises the statutory maximum sentence from 2 years to 20 years when a judge, rather than a jury, finds that the defendant's removal was subsequent to the commission of an aggravated felony. This contention is foreclosed by United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006).
We remand the case to the district court with instructions that it replace the judgment's reference to 8 U.S.C. § 1326(a)(b)(2) with a reference to 8 U.S.C. § 1326(a).