FILED
NOT FOR PUBLICATION DEC 10 2009
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. 09-10086
Plaintiff - Appellee, D.C. No. 5:08-CR-00337-RMW-1
v.
MEMORANDUM *
LUIS REBOLLA-SANCHEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Submitted December 7, 2009 **
San Francisco, California
Before: O’SCANNLAIN, RAWLINSON, and BEA, Circuit Judges.
Appellant Luis Rebolla-Sanchez appeals his sentence of sixty-five months’
imprisonment after he pleaded guilty to illegal reentry by a deported alien in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
violation of 8 U.S.C. § 1326. The maximum statutory penalty for a violation of
§ 1326 is two years’ imprisonment, unless a sentencing enhancement applies. 8
U.S.C. § 1326(a), (b). A sentencing enhancement applies when an alien was
deported subsequent to an aggravated felony conviction; the maximum statutory
penalty increases to twenty years. Id. § 1326(b)(2). We affirm the sentence
imposed by the district court.
The district court committed no Apprendi error when it held the applicable
statutory maximum penalty for Sanchez was twenty years’ imprisonment under 8
U.S.C. § 1326(b)(2), as opposed to two years’ imprisonment under § 1326(a),
because Rebolla-Sanchez admitted the dates he had been previously deported, and
these dates were charged in the indictment. We have recently held “an indictment
will support the § 1326(b) sentence enhancement if it alleges a removal date, thus
enabling a sentencing court to compare that date to the dates of any qualifying
felony convictions to determine whether the sentence-enhancing sequence is
satisfied.” United States v. Mendoza-Zaragoza, 567 F.3d 431, 434 (9th Cir. 2009).
So long as the dates of removal are admitted by the defendant, as Rebolla-Sanchez
did here, there is no Apprendi error in applying the § 1326(b)(2) enhancement,
because “the only other fact necessary to enhance the sentence is the date of the
felony conviction, which is an express exception to the Apprendi rule.” Id. at 436.
2
Although the district court committed plain error when it determined
Rebolla-Sanchez’s prior felony conviction was a qualifying conviction for the
purposes of sentence enhancement without examining the statute on which the
conviction was based, the error did not affect Rebolla-Sanchez’s substantial rights
because the outcome could not have changed had the district court examined the
statute.1 See United States v. Pimentel-Flores, 339 F.3d 959, 967 (9th Cir. 2003).
This court has already held that a violation of the statute on which Rebolla-
Sanchez was convicted, California Penal Code § 245(a)(1), categorically qualifies
as an aggravated felony and a crime of violence. Ortiz-Magana v. Mukasey, 542
F.3d 653, 661 (9th Cir. 2008). Therefore, had the district court examined Rebolla-
Sanchez’s statute of conviction, it would have been bound by this precedent to
come to the same conclusion it already reached.
Because remand to the district court to examine the statute underlying
Rebolla-Sanchez’s felony conviction would only “be delay[ing] the inevitable,” we
grant the government’s motion for judicial notice and affirm Rebolla-Sanchez’s
sentence. See United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007).
1
Plain error review, rather than harmless error review applies to this claim
because Rebolla-Sanchez did not raise the issue before the district court. See
United States v. Charles, 581 F.3d 927, 932 (9th Cir. 2009) (holding that plain
error review applies when a party fails to raise a claim before the district court).
3
AFFIRMED.
4