United States v. Arquimedes Mendoza-Soriano , 357 F. App'x 861 ( 2009 )

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NOT FOR PUBLICATION DEC 10 2009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. 08-10371
Plaintiff - Appellee, D.C. No. 5:07-cr-00503-RMW-1
v.
MEMORANDUM *
ARQUIMEDES MENDOZA-SORIANO,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted December 7, 2009
San Francisco, California
Before: O’SCANNLAIN, RAWLINSON, and BEA, Circuit Judges.
Appellant Arquimedes Mendoza-Soriano appeals his sentence of seventy
months’ imprisonment imposed by the district court following his plea of guilty to
illegal reentry by a deported alien in violation of 8 U.S.C. § 1326. The maximum
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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statutory penalty for a violation of § 1326 is two years’ imprisonment, unless a
sentence enhancement applies. 8 U.S.C. § 1326(a), (b). A sentence enhancement
applies when an alien was deported subsequent to an aggravated felony conviction;
the maximum statutory penalty increases to twenty years’ imprisonment. Id.
§ 1326(b)(2). We affirm the sentence imposed by the district court.
On appeal, Mendoza-Soriano makes two different claims as to why the
district court erred when it applied a § 1326(b) sentence enhancement: (1) the
government failed to allege in the indictment and prove to a jury beyond a
reasonable doubt that at least one of his deportations was subsequent to an
aggravated felony conviction; and (2) he did not admit to the deportation dates
alleged in the indictment. Mendoza-Soriano raised the former claim, but not the
latter, before the district court.
Mendoza-Soriano contends the government was required to allege in the
indictment and prove to a jury beyond a reasonable doubt that at least one of his
deportations was subsequent to an aggravated felony conviction. This claim is
foreclosed by our recent decision in United States v. Mendoza-Zaragoza, 567 F.3d
431, 434 (9th Cir. 2009), which held that “an indictment will support [a] § 1326(b)
sentence enhancement if it alleges a removal date, thus enabling the sentencing
court to compare that date to the dates of any qualifying felony convictions to
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determine whether the sentence-enhancing sequence is satisfied.” Id. Thus, the
district court did not err when it applied a § 1326(b) sentence enhancement even
though the government did not allege that at least one of Mendoza-Soriano’s
deportations was subsequent to an aggravated felony conviction.
Mendoza-Soriano correctly contends he did not admit the deportation dates
alleged in the indictment. A guilty plea “admit[s] only the facts necessary for a
bare conviction, even if other sentence-enhancing facts appeared in the
indictment.” Mendoza-Zaragoza, 567 F.3d at 435 (citing United States v. Thomas,
355 F.3d 1191, 1198 (9th Cir. 2004)). Mendoza-Soriano’s guilty plea admitted
only the facts necessary to sustain a bare conviction under § 1326: (1) he was an
alien, (2) he had been previously deported, (3) he reentered the United States
without permission, and (4) he was found in the United States. See 8 U.S.C.
§ 1326. His guilty plea did not admit the dates of his deportations—facts
necessary to support a § 1326(b) sentence enhancement. Thus, the district court
committed Apprendi error when it applied a § 1326(b) sentence enhancement
based on the deportation dates alleged in the indictment because those dates were
not admitted by Mendoza-Soriano, nor proved to a jury beyond a reasonable doubt.
See United States v. Covian-Sandoval, 462 F.3d 1090, 1096 (9th Cir. 2006).
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Plain error review, rather than harmless error review, applies. The objection
Mendoza-Soriano raised before the district court as to the inadequacy of the
indictment—that it failed to allege he was deported subsequent to an aggravated
felony conviction—did not preserve his claim on appeal: that he did not admit the
deportation dates in his guilty plea. See United States v. Charles, 581 F.3d 927,
932 (9th Cir. 2009) (holding that plain error review applies when a party fails to
preserve a claim for appeal by raising the claim before the district court). Here, the
district court committed plain error, but relief is not warranted because that error
did not affect Mendoza-Soriano’s substantial rights. See Covian-Sandoval, 462
F.3d at 1097–98. On appeal, Mendoza-Soriano failed to raise a reasonable doubt
as to the fact he was deported subsequent to an aggravated felony conviction. He
did not dispute the accuracy of the alleged deportation dates during the plea
colloquy, in his sentencing memorandum, nor at his sentencing hearing. Thus, we
must affirm the sentence imposed by the district court.
AFFIRMED.
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