Opinion
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NOT FOR PUBLICATION.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)
Appeal from the United States District Court for the District of Nevada Johnnie B. Rawlinson and Phillip M. Pro, District Judges, Presiding.
Before SCHROEDER, Chief Judge, TROTT and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Daniel S. Martinez appeals his conviction and sentence for one count of being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
Martinez contends that the district court erred by denying his motion for a judgment of acquittal. He specifically claims that the government failed to prove beyond a reasonable doubt that he was found in the United States on February 22, 1999, the date alleged in the indictment. We review de novo, United States v. Mendoza, 244 F.3d 1037, 1042 (9th Cir.), cert. denied, 534 U.S. 897, 122 S.Ct. 221, 151 L.Ed.2d 158 (2001), and find Martinez's contention unpersuasive.
The date on which Martinez was found is not an element of § 1326(a). Cf. United States v. Parga-Rosas, 238 F.3d 1209, 1213-14 (9th Cir.), cert. denied, 534 U.S. 942, 122 S.Ct. 319, 151 L.Ed.2d 238 (2001); United States v. Ramos-Oseguera, 120 F.3d 1028, 1035 (9th Cir.1997) (stating that variance in date is not reversible error unless time is a material element of the charged offense), overruled on other grounds by United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000).
The indictment in this case gave Martinez notice of what evidence would be presented against him, see United States v. Antonakeas, 255 F.3d 714, 722-23 (9th Cir.2001), and did not affect his substantial rights, see United States v. Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir.1997). Accordingly, any variance between the date specified in the indictment and the date Martinez was actually found in the United States was not fatal. Cf. Tsinhnahijinnie, 112 F.3d at 911; see also United States v. Laykin, 886 F.2d 1534, 1542-43 (9th Cir.1989).
Although the district court denied Martinez's motion for judgment of acquittal on a different ground, we may affirm on any basis supported by the record. United States v. Allen, 153 F.3d 1037, 1045 (9th Cir.1998).
Martinez also contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the existence of a prior felony conviction used to enhance his sentence must be charged in the indictment and proved beyond a reasonable doubt. Martinez further contends that Apprendi limited Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) to its unique facts. Martinez's Apprendi contentions are foreclosed by our decisions in both United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.) (applying plain error review), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) and United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (applying de novo review).
AFFIRMED.