FILED
NOT FOR PUBLICATION OCT 04 2010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. 09-10055
Plaintiff - Appellee, D.C. No. 5:08-CR-00166-JF
v.
MEMORANDUM *
ALBERTO HERNANDEZ-OREGEL,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Alberto Hernandez-Oregel appeals from the 90-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 under 28 U.S.C.
§ 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Hernandez-Oregel contends, for the first time on appeal, that the district
court erred by enhancing his sentence under 18 U.S.C. § 1326(b) because the
government never provided the court with the statute of his prior conviction. We
take judicial notice of the abstract of judgment for Hernandez-Oregel’s 1981
conviction for assault with a deadly weapon, in violation of California Penal Code
§ 245(a), a categorical felony crime of violence that qualified Hernandez-Oregel
for a sentencing enhancement under section 1326(b). See United States v. Heron-
Salinas, 566 F.3d 898, 899 (9th Cir. 2009); see also United States v. Black, 482
F.3d 1035, 1041 (9th Cir. 2007).
Hernandez-Oregel also contends that Almendarez-Torres v. United States,
523 U.S. 224 (1998), should be overruled. As he concedes, this contention fails.
See Agostini v. Felton, 521 U.S. 203, 237 (1997).
Finally, Hernandez-Oregel contends that the sentence is substantively
unreasonable. The record reflects that there was no procedural error and that, in
light of the totality of the circumstances, the sentence within the Guidelines range
is substantively reasonable. See United States v. Carty, 520 F.3d 984, 992-93 (9th
Cir. 2008) (en banc).
The government’s request for judicial notice is granted.
AFFIRMED.
2 09-10055