United States v. Campos-Herrera

MEMORANDUM ** Roberto Campos-Herrera appeals from the 60-month sentence imposed by the district court 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 . Campos-Herrera contends that his attorney’s failure at sentencing to challenge the application of 8 U.S.C. § 1326 (b) based on Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), constituted ineffective assistance of counsel. We conclude that the record is sufficiently developed to allow us to consider and to reject Campos-Herrera’s ineffective assistance of counsel claim on direct appeal. See United States v. Labrada-Bustamante, 428 F.3d 1252, 1260-61 (9th Cir.2005). Campos-Herrera admitted pursuant to his guilty plea that he was removed on a date subsequent to the felony conviction used to enhance his sentence. Because the district court explicitly acknowledged that the removal date was not alleged in the indictment, Campos-Herrera cannot show a reasonable probability that the result of the proceeding would have been different had his counsel raised the issue. See Strickland v. Washington, 466 U.S. 668, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Labrada-Busta-mante, 428 F.3d at 1261 . We review Campos-Herrera’s sentence for plain error, see United States v. Covian-Sandoval, 462 F.3d 1090,1093 (9th Cir. 2006), and we affirm. We reject Campos-Herrera’s Apprendi challenge to his sentence. Even assuming that the district court’s reliance on a prior removal that was not charged in the indictment was error under Apprendi and the error was plain, we conclude that the error did not affect Campos-Herrera’s substantial rights, because he admitted the date of the removal during the plea colloquy. See Covian-Sandoval, 462 F.3d at 1098-99 . Further, in light of the admission, the error did not seriously affect the fairness, integl’ity, or public reputation of judicial proceedings. See United States v. Cotton, 535 U.S. 625, 632-33 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002). Accordingly, we conclude that relief is not warranted under the plain error standard of review. See Covian-Sandoval, 462 F.3d at 1098-99 . AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.