                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 05 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50445

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00628-ABC

  v.
                                                 MEMORANDUM *
MARIO SERRANO-ARREDONDO,
a.k.a. Bugsly, a.k.a. Mario Serrano,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Audrey B. Collins, Chief Judge, Presiding

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Mario Serrano-Arredondo appeals from his conditional guilty-plea

conviction and 46-month sentence for being an illegal alien found in the United

States following deportation, in violation of 8 U.S.C. § 1326(a). We have


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We affirm, but remand to correct the

judgment.

      Serrano-Arredondo contends that the district court’s jury instructions

regarding acquired citizenship violated his due process rights because they

impermissibly shifted the burden of proof. The contested instructions accurately

instructed the jury to consider evidence of Serrano-Arredondo’s acquired

citizenship when determining whether the Government met its burden of proving

alienage beyond a reasonable doubt, and did not unconstitutionally shift the burden

of proof. See United States v. McKittrick, 142 F.3d 1170, 1177 (9th Cir. 1998).

      Serrano-Arredondo further argues that his sentence is unconstitutional

because the district court applied an enhancement based on prior convictions that

were found by the judge and were not admitted by him nor proven to a jury beyond

a reasonable doubt. This argument is foreclosed. See Almendarez-Torres v.

United States, 523 U.S. 224 (1998); see also United States v. Covian-Sandoval,

462 F.3d 1090, 1096-97 (9th Cir. 2006) (concluding that the district court can

enhance a sentence based on its own finding of the fact of a prior felony

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


                                           2                                     09-50445
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 to correct judgment.




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