United States v. Rojas-Arevalo

MEMORANDUM ^***

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We have held that violation of 8 U.S.C. § 1326 is a “continuing offense which continues so long as the alien remains in the country.”¹ Thus, Rojas-Arevalo’s violation of § 1326 continued until January 1999, well after the effective date of the 1996 amendment to the definition of “aggravated felony.”² Therefore, the district court correctly applied the amended definition of “aggravated felony” in calculating RojasArevalo’s sentence.³

Nothing in Valderrama-Fonseca v. INS⁴ changes this result. In that case, we did not apply the amended definition of “aggravated felony” because all of the “actions taken”⁵ in petitioner’s deportation proceedings occurred before the effective date of the 1996 amendment.⁶ However, contrary to what Rojas-Arevalo suggests, we did not limit the applicability of the 1996 amendment to cases where there was an order or decision issued against an alien by the Attorney General after the effective date of that amendment. Here, Rojas-Arevalo’s violation of § 1326 also triggered the amended definition of “aggravated felony,”⁷ and that is not inconsistent with our decision in Valderrama-Fonseca.

AFFIRMED.

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1 . United States v. Mendoza-Iribe, 198 F.3d 742, 744 (9th Cir.1999) (per curiam) (quotations omitted).

2 . See Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), § 321 (a)(11), Div. C of Pub.L. No. 104-208, 110 Stat. 3009-627 (Sept. 30, 1996) (amending 8 U.S.C. § 1101(a)(43)(F) to reduce the term of imprisonment requirement from five years to one year).

3 . Mendoza-Iribe, 198 F.3d at 744; see also United States v. Ramirez-Valencia, 202 F.3d 1106, 1110 (9th Cir.2000) (per curiam).

4 . 116 F.3d 853 (9th Cir.1997).

5 . IIRIRA § 321(c) ("The amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act....”).

6 . Valderrama-Fonseca, 116 F.3d at 855.

7 . Mendoza-Iribe, 198 F.3d at 744; see also Ramirez-Valencia, 202 F.3d at 1110.