                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 04 2010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. 09-10055

               Plaintiff - Appellee,             D.C. No. 5:08-CR-00166-JF

  v.
                                                 MEMORANDUM *
ALBERTO HERNANDEZ-OREGEL,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeremy D. Fogel, District Judge, Presiding

                           Submitted September 13, 2010 **

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

       Alberto Hernandez-Oregel appeals from the 90-month sentence imposed

following his guilty-plea conviction for being a deported alien found in the United

States, in violation of 8 U.S.C. §1326. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

          *
             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).
      Hernandez-Oregel contends, for the first time on appeal, that the district

court erred by enhancing his sentence under 18 U.S.C. § 1326(b) because the

government never provided the court with the statute of his prior conviction. We

take judicial notice of the abstract of judgment for Hernandez-Oregel’s 1981

conviction for assault with a deadly weapon, in violation of California Penal Code

§ 245(a), a categorical felony crime of violence that qualified Hernandez-Oregel

for a sentencing enhancement under section 1326(b). See United States v. Heron-

Salinas, 566 F.3d 898, 899 (9th Cir. 2009); see also United States v. Black, 482

F.3d 1035, 1041 (9th Cir. 2007).

      Hernandez-Oregel also contends that Almendarez-Torres v. United States,

523 U.S. 224 (1998), should be overruled. As he concedes, this contention fails.

See Agostini v. Felton, 521 U.S. 203, 237 (1997).

      Finally, Hernandez-Oregel contends that the sentence is substantively

unreasonable. The record reflects that there was no procedural error and that, in

light of the totality of the circumstances, the sentence within the Guidelines range

is substantively reasonable. See United States v. Carty, 520 F.3d 984, 992-93 (9th

Cir. 2008) (en banc).

      The government’s request for judicial notice is granted.

      AFFIRMED.


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