United States v. Diaz-Cortez

MEMORANDUM ** Miguel Diaz-Cortez appeals from his conviction by jury trial and his sentence for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. Diaz-Cortez first contends that insufficient evidence supports his conviction because the prosecution failed to establish that Diaz-Cortez was physically present at a prior deportation proceeding. The Government, however, does not have to prove physical presence in order to establish a § 1326 violation. See United States v. Mendoza-Lopez, 481 U.S. 828, 837 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987); see also United States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir.1996) (en banc). We further reject Diaz-Cortez’s contentions that he was entitled to a jury instruction that, under § 1326, the element of deportation requires both that Diaz-Cortez was physically present at a hearing and that an immigration judge entered a final order of deportation against him. See Alvarado-Delgado, 98 F.3d at 493 (holding that lawfulness of the predicate deportation is not an element of the § 1326 offense and therefore a defendant is not entitled to have that issue determined by a jury). In addition, we hold that the district court’s use of Diaz-Cortez’s prior aggravated felony conviction to enhance his sentence did not violate his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). It is well-settled under Apprendi and Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), that the fact of a prior conviction does not need to be alleged in an indictment, submitted to a jury or proved beyond a reasonable doubt. See, e.g., United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.