Opinion
No. 06-50342.
Argued and Submitted April 12, 2007.
Filed April 23, 2007.
U.S. Attorney, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
John C. Ellis, Jr., Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-O5-01402-BTM.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Defendant-Appellant Magin Labra-Morales pled guilty to being a deported alien found in the United States in violation of 8 U.S.C. § 1326. The district court sentenced Labra-Morales to forty-six months imprisonment followed by three years of supervised release. In imposing sentence, the district court applied a sixteen-point enhancement under U.S.S.G. § 2L1.2 because Labra-Morales was previously deported after he was convicted in 1983 of child molestation, a "crime of violence."
In 1983, Labra-Morales molested his nine-year old step-daughter and was convicted of lewd or lascivious acts with a child under the age of 14 with force, in violation of California Penal Code § 288(b).
Labra-Morales appeals his forty-six month sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
During the guilty-plea hearing, Labra-Morales admitted that he was previously deported. However, no specific date of deportation was charged in the indictment or admitted by Labra-Morales. The Pre-sentence Report ("PSR") listed three dates of prior deportations, all of which followed Labra-Morales's 1983 child molestation conviction. Labra-Morales contends that we must vacate his sentence because the district court erred in relying on the deportation dates listed in the PSR to enhance his sentence.
We disagree with Labra-Morales and find that the error, if any, was harmless because Labra-Morales's substantial rights were not violated. See United States v. Covian-Sandoval, 462 F.3d 1090, 1098-99 (9th Cir. 2006) (affirming a sixteen-point sentence enhancement where the defendant failed to raise a reasonable doubt as to the fact of prior deportation).
Labra-Morales's Almendarez-Torres challenges are foreclosed. See id. at 1096-97 (rejecting the defendant's argument that Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) effectively overruled or limited the holding of Almendarez-Torres). His argument that § 1326(b) is unconstitutional is also foreclosed. See Covian-Sandoval, 462 F.3d at 1098.
Accordingly, Labra-Morales's forty-six month sentence for violation of § 1326 is AFFIRMED.