United States v. Rios-Reyes

MEMORANDUM ^**

Bonfacio Rios-Reyes appeals from the 57-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 pursuant to 28 U.S.C. § 1291. We vacate the sentence and remand for resentencing.

Rios-Reyes objected in district court to the enhancement of his sentence based on the district court’s finding that he was deported subsequent to a prior felony conviction. Because the fact of the subsequent removal was neither admitted by Rios-Reyes pursuant to his guilty plea nor proven to a jury beyond a reasonable doubt, we agree that the enhanced sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. CovianSandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006). Further, because the record does not contain overwhelming and uncontroverted evidence establishing the subsequent removal, see United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir.2006), we cannot conclude that the error was harmless beyond a reasonable doubt. We therefore vacate the sentence and remand for resentencing. Cf. United States v. Salazar-Lopez, 506 F.3d 748, 753 (9th Cir.2007).

SENTENCE VACATED and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.