United States v. Barajas-Becerril

MEMORANDUM ** Huren Bajaras-Becerril appeals from the 63-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 (a). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. Barajas-Becerril contends that the district court erred by enhancing his sentence pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii) because his prior conviction for a lewd or lascivious act involving a child under the age of 14 years, in violation of California Penal Code § 288(a), is not categorically a crime of violence. This contention fails. See United States v. Medina-Maella, 351 F.3d 944, 947 (9th Cir.2003); United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir.1999). Barajas-Becerril next contends that his sentence violates Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because the exact date of his prior removal was not alleged in the indictment, nor admitted by him. Because the indictment alleged that his removal *629 occurred subsequent to the date of his prior conviction, this contention fails. See United States v. Calderon-Segura, 512 F.3d 1104, 1110-11 (9th Cir.2008). As Barajas-Becerril concedes, his contentions that the statutory maximum under § 1326 is two years of imprisonment and one year of supervised release because: 1) Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), does not govern under the doctrine of constitutional avoidance; 2) Almendarez-Torres has been overruled; and 3) 8 U.S.C. § 1326 (b) is unconstitutional, are foreclosed. See United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.