United States v. Tirado-Jacobo

MEMORANDUM ** Rodolfo Tirado-Jacobo appeals from the 48-month prison sentence imposed following his guilty-plea conviction for being 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 . We affirm and remand. Tirado-Jacobo contends that his sentence is unconstitutional because the enhancement he received for a prior conviction under § 1326(b) was not based on facts found by a jury. His contention is foreclosed. See United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005) (holding that we are bound to follow Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), even though it has been called into question, unless it is explicitly overruled by the Supreme Court). Tirado-Jacobo next contends that the district court’s imposition of a supervised release condition that requires him to report to his probation officer within 72 hours of re-entry into the United States *635 violates the Fifth Amendment. This contention is also foreclosed. See United States v. Rodriguez-Rodriguez, 441 F.3d 767, 772-73 (9th Cir.2006) (holding that the imposition of this supervised release condition does not violate the Fifth Amendment privilege against self-incrimination because the reporting requirement does not compel an admission of criminal activity). In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)). We therefore AFFIRM the sentence and REMAND to the district court for the sole purpose of excising the reference to 8 U.S.C. § 1326 (b)(2) from the judgment. 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.