United States v. Ledesma-Aceves

MEMORANDUM ** Francisco Ledesma-Aceves appeals from his 77-month sentence imposed after his guilty-plea conviction for being an 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 we affirm. Ledesma-Aceves contends that the district court violated his Fifth and Sixth Amendment rights pursuant to Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because the indictment did not allege, he did not admit, and a jury did not find beyond a reasonable doubt, that he had been deported subsequent to his drug trafficking conviction. We disagree. The record reflects that the dates of Ledesma-Aceves’ prior removal were alleged in the indictment and that he admitted all of these dates in his Rule 11 hearing. See United States v. Salazar-Lopez, 506 F.3d 748, 751-55 (9th Cir.2007) (noting that it is sufficient if the date of removal is alleged in the indictment and admitted by the defendant or found by the jury); see *656 also United States v. Calderon-Segura, 512 F.3d 1104, 1110-11 (9th Cir.2008). Thus, the district court’s application of § 1326(b) did not result in Apprendi error. See Salazar-Lopez, 506 F.3d at 751-55 ; see also Calderon-Segura, 512 F.3d at 1110-11 . Ledesma-Aceves also contends that Almendarez-Toyres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), is invalid and should not be relied upon. He further contends that under the constitutional avoidance doctrine, Almendarez-Tor>~es is limited to challenges to the indictment where the defendant admits the prior conviction during a guilty plea. These contentions are foreclosed. See Salazar-Lopez, 506 F.3d at 751 n. 3. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.