United States v. De La Garza , 168 F. App'x 225 ( 2006 )

MEMORANDUM ^**

Pedro Enrique De La Garza appeals from a judgment of conviction for being an alien found in the United States subsequent to deportation, in violation of 8 U.S.C. § 1326(a), as enhanced by (b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291.

De La Garza contends that 8 U.S.C. § 1326(b) is unconstitutional. Because De La Garza did not raise this issue before the district court, we review for plain error, see United States v. Buckland, 289 F.3d 558, 563 (9th Cir.2002) (en banc), and we affirm.

De La Garza acknowledges that the Supreme Court upheld the constitutionality of 8 U.S.C. § 1326(b) in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but contends that subsequent decisions have undermined its vitality such that Almendarez-Torres is no longer good law. This argument is foreclosed by United States v. Weiland, 420 F.3d 1062, 1079, n. 16 (9th Cir.2005). Accordingly, we affirm the conviction.

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)).

AFFIRMED; REMANDED

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.