     Case: 08-10710     Document: 00511012223          Page: 1    Date Filed: 01/26/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          January 26, 2010
                                     No. 08-10710
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARIO ALBERTO PENA-SANDOVAL,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 7:07-CR-28-ALL


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Mario Alberto Pena-Sandoval pleaded guilty to
illegal reentry after deportation in violation of 8 U.S.C. § 1326 and was
sentenced to 57 months of imprisonment. Pena-Sandoval argues for the first
time on appeal that our opinion in United States v. Rojas-Luna, 522 F.3d
502,504-06 (5th Cir. 2008), compels us to vacate his sentence. In Rojas-Luna,
we held that the district court’s use of the fact of the date of Rojas-Luna’s 2006
removal to increase his sentence beyond the statutory maximum sentence

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 08-10710   Document: 00511012223 Page: 2        Date Filed: 01/26/2010
                                No. 08-10710

allowed under § 1326(a) was reversible plain error because the fact of his 2006
removal had not been admitted by Rojas-Luna or proven to a jury beyond a
reasonable doubt. Rojas-Luna, 522 F.3d at 506-07. We determined that the only
evidence in the record to show when the defendant was removed was an
unsupported statement in the presentence report (PSR) and that there was no
evidence in the record that the defendant had agreed to the accuracy of this fact
in the PSR. Id. at 507.
      The facts in Pena-Sandoval’s case are distinguishable. Pena-Sandoval
pleaded guilty to the indictment that specifically alleged that he was deported
in March 2004. The removal occurred after Pena-Sandoval’s 1995 guilty plea to
possession with intent to distribute and distribution in excess of five kilograms
of cocaine. The district court properly relied on the 2004 removal to enhance
Pena-Sandoval’s sentence. The district court did not plainly err. See Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009).
AFFIRMED.




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