United States v. Rivera-Arreaga

MEMORANDUM ** Axel Garado Rivera-Arreaga appeals from the 70-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United *568 States in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. Rivera-Arreaga contends that, under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), the district court was precluded from applying a 16-level upward adjustment under U.S.S.G. § 2L1.2(b)(l)(D), because he did not admit the date of his removal and it was not proven to a jury beyond a reasonable doubt. We hold that any such error was harmless beyond a reasonable doubt. See United States v. Zepeda-Martinez, 470 F.3d 909, 913-14 (9th Cir.2006). Rivera-Arreaga also contends that the district court erred in sentencing him above the statutory maximum term of two years based on a prior conviction that was not admitted or found beyond a reasonable doubt. He contends that Almendarez- Torres v. United States, 523 U.S. 224, 226 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), is no longer good law. We reject this contention. See United States v. Martinez-Rodriguez, 472 F.3d 1087, 1092-93 (9th Cir.2007). Rivera-Arreaga finally contends that his sentence must be vacated because 8 U.S.C. § 1326 (b) is facially unconstitutional. This contention is foreclosed by United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005), and United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005). Accordingly, we affirm. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.