United States v. Rios-Reyes

*454 MEMORANDUM ** 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 . We vacate the sentence and remand for resentencing. Rios-Reyes objected in district court to the enhancement of his sentence based on the district court’s 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. CovianSandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006). Further, because the record does not contain overwhelming and uncontroverted evidence establishing the subsequent removal, see United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir.2006), we cannot conclude that the error was harmless beyond a reasonable doubt. We therefore vacate the sentence and remand for resentencing. Cf. United States v. Salazar-Lopez, 506 F.3d 748, 753 (9th Cir.2007). SENTENCE VACATED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.