                                                                           FILED
                           NOT FOR PUBLICATION                              APR 30 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50385

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00341-JFW-1

  v.
                                                 MEMORANDUM *
VICTOR RAMIREZ MARTINEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                        Argued and Submitted April 7, 2010
                               Pasadena, California

Before: PREGERSON, GRABER and WARDLAW, Circuit Judges.

       Victor Ramirez-Martinez appeals the sentence imposed following our

remand in Ramirez's first appeal. We previously found that the 'unchallenged

Presentence Investigation Report stated that the continuing offense under 8 U.S.C.

y 1326 started to run on July 9, 2007þ; in other words, we held that the Presentence



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Report had concluded that Ramirez was 'found in' the United States on that date.

United States v. Martinez, 313 F. App'x 53, 54 (9th Cir. 2009). As a result, we

concluded that the addition of three criminal history points for Ramirez's prior

conviction for selling a controlled substance in violation of Cal. Health & Safety

Code y 11352(a) constituted plain procedural error. Id. We vacated the Ramirez's

sentence and remanded for resentencing on an open record so that the Government

could introduce evidence to establish the 'found in' date. Id.

      Upon remand the Government failed to meet its burden of adducing

sufficient evidence to establish that the 'found in' date was in June 2004. It was

legal error to rely upon the general jury verdict because the 'found in' date is not

an element of an offense under 8 U.S.C. y 1326 and thus was not necessarily found

by the jury.1 See United States v. Gondinez-Rabadan, 289 F.3d 630, 633 (9th Cir.

2002) ('The exact date on which [the defendant] was found in the United States is

not an element of a y 1326 violation.'). Because the Government may not rely on

the jury's general verdict, it has failed to present sufficient evidence to establish a




      1
       In point of fact, the evidence before the jury was that Ramirez filled out an
application with the California Department of Motor Vehicles in July 2004 and that
an Immigration and Customs Enforcement agent found Ramirez in Long Beach in
July 2007; neither party argued to the jury that either date was dispositive of
anything.
found in date different than the July 2007 date presented in the unchallenged

Presentence Report.2

      Therefore, we again vacate Ramirez's sentence and remand to the district

court with specific instructions to recalculate the advisory Guidelines range

without including the three additional criminal history points for the 1990 Cal.

Health & Safety Code y 11352(a) conviction, and to resentence Ramirez without

considering the impact of that criminal conviction.

      VACATED and REMANDED with instructions.




      2
       Any variance between the 2004 'found in' date charged in the Indictment
and the 2007 'found in' date proven at trial is harmless as it did not prejudice
Ramirez. United States v. Shea, 493 F.3d 1110, 1118 (9th Cir. 2007).
                                                                             FILED
United States v. Ramirez Martinez, No. 09-50385                               APR 30 2010

                                                                          MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, dissenting:                                         U.S . CO U RT OF AP PE A LS




      I respectfully dissent.

      In my view the evidence established a 'found in' date earlier than July 2007

because Ramirez affirmatively tooµ the position at trial that he has been in the

United States 'continuously' since 1995, and he presented evidence to that effect.

Perhaps for that reason, Ramirez did not argue until the second appeal to us, after

remand, that he was not found in the United States until July 2007. For those

reasons, I would hold that Ramirez forfeited the argument that the majority now

finds dispositive. See United States v. James, 109 F.3d 597, 599 (9th Cir. 1997)

(holding that a defendant's failure to appeal an alleged error in a first appeal

waives the right to do so in a second appeal).
