FILED
NOT FOR PUBLICATION JUN 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-50263
Plaintiff - Appellee, D.C. No. CR-06-00122-BTM
v.
MEMORANDUM *
ELIAS SOULAS-GARZA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted January 13, 2010
Pasadena, California
Before: GOODWIN, CANBY and FISHER, Circuit Judges.
Elias Soulas-Garza appeals his seventy-month sentence for being a deported
alien found in the United States in violation of 8 U.S.C. § 1326. We review de
novo the district court’s interpretation and application of the Sentencing
Guidelines. United States v. Medina-Villa, 567 F.3d 507, 511 (9th Cir. 2009).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Where the district court commits error under Apprendi v. New Jersey, 530 U.S. 466
(2000), and the error is properly preserved, we review for harmless error. United
States v. Zepeda-Martinez, 470 F.3d 909, 910 (9th Cir. 2006). We affirm.
Soulas-Garza contends, first, that his prior conviction under California Penal
Code § 261.5(d) does not constitute a “crime of violence” for purposes of
sentencing enhancement. We have previously held, however, that California Penal
Code § 261.5(d) meets the federal generic definition of “statutory rape” and is
therefore a crime of violence. United States v. Gomez-Mendez, 486 F.3d 599, 603
(9th Cir. 2007). The district court therefore did not err in applying a sixteen-level
increase in offense level under U.S.S.G. § 2L1.2(b)(1)(A).
Soulas-Garza also argues that the district court erred in increasing the
statutory maximum under 8 U.S.C. § 1326(b)(2) because the indictment failed to
allege his date of removal. The Supreme Court has held that § 1326(b)(2)
constitutes a “penalty provision” rather than a separate crime and that a judge may
therefore enhance a sentence for a prior conviction even if the fact of the
conviction was not alleged in the indictment or proven beyond a reasonable doubt.
Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998); see also United
States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005) (noting that we are
bound by Almendarez-Torres, although subsequent case law calls it into question,
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unless the Supreme Court explicitly overrules it). Failure to allege either the date
of the prior removal or that it occurred after a qualifying prior conviction, however,
constitutes error under Apprendi v. New Jersey, 530 U.S. 466 (2000). See United
States v. Mendoza-Zaragoza, 567 F.3d 431, 434 (9th Cir. 2009). Although, as the
government concedes, its failure to allege either the date of removal or that the
removal occurred after the prior conviction therefore constitutes error, “the record
contains ‘overwhelming’ and ‘uncontroverted’ evidence” that Soulas-Garza was
deported subsequent to the qualifying felony conviction. Zepeda-Martinez, 470
F.3d at 913 (citation omitted). The error is therefore harmless.
AFFIRMED.
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