                                                                             FILED
                            NOT FOR PUBLICATION                              JUN 18 2010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. 07-50263

              Plaintiff - Appellee,              D.C. No. CR-06-00122-BTM

  v.
                                                 MEMORANDUM *
ELIAS SOULAS-GARZA,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

                      Argued and Submitted January 13, 2010
                               Pasadena, California

Before: GOODWIN, CANBY and FISHER, Circuit Judges.

       Elias Soulas-Garza appeals his seventy-month sentence for being a deported

alien found in the United States in violation of 8 U.S.C. § 1326. We review de

novo the district court’s interpretation and application of the Sentencing

Guidelines. United States v. Medina-Villa, 567 F.3d 507, 511 (9th Cir. 2009).



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Where the district court commits error under Apprendi v. New Jersey, 530 U.S. 466

(2000), and the error is properly preserved, we review for harmless error. United

States v. Zepeda-Martinez, 470 F.3d 909, 910 (9th Cir. 2006). We affirm.

      Soulas-Garza contends, first, that his prior conviction under California Penal

Code § 261.5(d) does not constitute a “crime of violence” for purposes of

sentencing enhancement. We have previously held, however, that California Penal

Code § 261.5(d) meets the federal generic definition of “statutory rape” and is

therefore a crime of violence. United States v. Gomez-Mendez, 486 F.3d 599, 603

(9th Cir. 2007). The district court therefore did not err in applying a sixteen-level

increase in offense level under U.S.S.G. § 2L1.2(b)(1)(A).

      Soulas-Garza also argues that the district court erred in increasing the

statutory maximum under 8 U.S.C. § 1326(b)(2) because the indictment failed to

allege his date of removal. The Supreme Court has held that § 1326(b)(2)

constitutes a “penalty provision” rather than a separate crime and that a judge may

therefore enhance a sentence for a prior conviction even if the fact of the

conviction was not alleged in the indictment or proven beyond a reasonable doubt.

Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998); see also United

States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005) (noting that we are

bound by Almendarez-Torres, although subsequent case law calls it into question,


                                           2
unless the Supreme Court explicitly overrules it). Failure to allege either the date

of the prior removal or that it occurred after a qualifying prior conviction, however,

constitutes error under Apprendi v. New Jersey, 530 U.S. 466 (2000). See United

States v. Mendoza-Zaragoza, 567 F.3d 431, 434 (9th Cir. 2009). Although, as the

government concedes, its failure to allege either the date of removal or that the

removal occurred after the prior conviction therefore constitutes error, “the record

contains ‘overwhelming’ and ‘uncontroverted’ evidence” that Soulas-Garza was

deported subsequent to the qualifying felony conviction. Zepeda-Martinez, 470

F.3d at 913 (citation omitted). The error is therefore harmless.

      AFFIRMED.




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