United States v. Valencia-Meraz , 211 F. App'x 619 ( 2006 )

MEMORANDUM^**

Ezequiel Valencia-Meraz appeals from the 86-month sentence imposed following his guilty plea conviction of illegal reentry in violation of 18 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

Valencia-Meraz contends that his Fifth and Sixth amendment rights were violated by the district court’s application of a 16-level enhancement based on a predicate offense that was not charged in the indictment or found by a jury beyond a reasonable doubt. He also contends that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is presumptively overruled by superseding case law.

We, however, reject these contentions. See United States v. Von Brown, 417 F.3d 1077, 1079 (9th Cir.2005) (per curiam) (deeming the categorization of a prior offense “a legal question, not a factual question”); see also United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (holding that this court is bound to follow Almendarez-Torres even though it has been called into question, unless it is explicitly overruled by the Supreme Court).

However, as Valencia-Meraz was sentenced at a time when the Sentencing Guidelines were mandatory and they are now advisory, and his Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) contentions were preserved before the district court, we vacate and remand for further proceedings. See United States v. Beng-Salazar, 452 F.3d 1088, 1097 (9th Cir.2006).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we further 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)).

VACATED and 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.