Opinion
No. 06-50373.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 13, 2008.
Mark R. Rehe, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
John C. Ellis, Jr., 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, John S. Rhoades, District Judge, Presiding. D.C. No. CR-05-01712-JSR.
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.
Bonfacio Rios-Reyes appeals from the 57-month sentence imposed following his guilty-plea conviction for being 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.
Rios-Reyes contends that the district court erred by enhancing his sentence based upon a finding that he was deported subsequent to a prior felony conviction. Because the fact of the subsequent removal was neither admitted by Rios-Reyes pursuant to his guilty plea nor proven to a jury beyond a reasonable doubt, we agree that the enhanced sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir. 2006). However, uncontroverted evidence in the presentence report established that Rios-Reyes was removed after his prior conviction. We therefore conclude that the district court's error was harmless. See United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir. 2006) (holding that Apprendi error is harmless "if the court finds beyond a reasonable doubt that the result would have been the same absent the error" (internal quotation marks and citation omitted)).
AFFIRMED.
ORDER
Appellee's petition for panel rehearing is granted. The memorandum disposition filed on January 22, 2008, 265 Fed.Appx. 453, is withdrawn and replaced by a memorandum disposition filed concurrently with this order.