                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 27 2010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. 09-50563

              Plaintiff - Appellee,              D.C. No. 3:08-cr-03799-JLS-1

  v.
                                                 MEMORANDUM *
AGUSTIN VAZQUEZ-ALCALA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                     Argued and Submitted December 10, 2010
                               Pasadena, California

Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.

       Agustin Vazquez-Alcala appeals the sentence imposed following his guilty

plea to illegal reentry after removal, 8 U.S.C. § 1326(a), asserting Apprendi error,

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because the date of his removal




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
was neither proven by the government nor admitted by him. We agree and,

accordingly, vacate the sentence and remand for resentencing.

      The indictment charged Vazquez under 8 U.S.C. §§ 1326(a) and (b) and

alleged that he was “removed from the United States subsequent to December 19,

1996.” However, during the plea colloquy, the date of removal was not admitted

by Vazquez; nor was it necessary for the magistrate judge to elicit the date of

removal as it is not an essential element of a violation of § 1326(a).

Almendarez-Torres v. United States, 523 U.S. 224, 227 (1998) (concluding that

facts listed in § 1326(b) are sentencing factors and not elements of a separate

offense); United States v. Cazares, 121 F.3d 1241, 1248 (9th Cir. 1997) (“[T]he

effect of a guilty plea [is limited] to an admission of the facts essential to the

validity of the conviction.”). Despite the omission from the plea colloquy of any

mention of a removal date, the magistrate judge found in its Findings and

Recommendation that Vazquez was “removed from the United States after

December 19, 1996.” Although there was no evidentiary basis for this finding,

Vazquez did not object at the time.

      The district court accepted the plea of guilty, which lacked a factual

predicate for a sentencing enhancement under § 1326(b), United States v.

Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir. 2006), and was defective under Rule


                                            2
11, see Fed. R. Crim. P. 11(b)(1)(G), (b)(3); United States v. Minore, 292 F.3d

1109, 1115–17 (9th Cir. 2002) (citing Henderson v. Morgan, 426 U.S. 637

(1976)).

       The presentence report recommended that Vazquez’s offense level be

enhanced for removal after a conviction for a drug trafficking offense. Vazquez

objected on the ground that the government had failed to prove, and he did not

admit, that he was removed after December 19, 1996, following his conviction for

a drug trafficking offense. Because the temporal relation between a removal and a

prior conviction is a fact that must be proven beyond a reasonable doubt at trial or

admitted by the defendant, United States v. Covian-Sandoval, 462 F.3d 1090, 1098

(9th Cir. 2006), the district court committed Apprendi error when it enhanced

Vazquez’s sentence under § 1326(b).

       Although the government possessed Vazquez’s warrant of removal, and

could readily have introduced it to meet its burden of proof, it failed to do so.1

Thus, the Apprendi error was not harmless because the court lacked

“overwhelming and uncontroverted” evidence demonstrating the date of removal.

United States v. Salazar-Lopez, 506 F.3d 748, 755 (9th Cir. 2007); Zepeda-



       1
          We deny the government’s belated effort to introduce the warrant of removal on appeal
via its “motion to supplement the record and take judicial notice.”

                                               3
Martinez, 470 F.3d at 913. Therefore, we must vacate the sentence and remand to

the district court for resentencing.

      The district court did not err by failing to rule on Vazquez’s objections to the

presentence report because “[o]nly specific factual objections trigger Rule

32(i)(3)(B).” United States v. Stoterau, 524 F.3d 988, 1011 (9th Cir. 2008).

      We remand for resentencing on an open record. United States v. Matthews,

278 F.3d 880, 885–87 (9th Cir. 2002) (en banc).

      VACATED and REMANDED.




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