United States v. Tersero-Aguilar
Docket: No. 05-50437
Court: Court of Appeals for the Ninth Circuit; January 17, 2006; Federal Appellate Court
Amadeo Tersero-Aguilar appeals his conviction and sentence for being an illegal alien found in the U.S. after deportation. He argues that the sentencing enhancement under 8 U.S.C. § 1326(b)(2), based on a prior aggravated felony not determined by a jury, is unconstitutional. Tersero-Aguilar asserts that recent Supreme Court decisions have undermined the ruling in Almendarez-Torres v. United States, which permitted judges to determine prior convictions as sentencing factors by a preponderance of the evidence. However, the court finds this argument foreclosed, affirming that it remains bound by Almendarez-Torres as established in United States v. Weiland. The court affirms the conviction and sentence but remands the case to the district court to correct the judgment by removing the incorrect reference to 8 U.S.C. § 1326(b)(2). The ruling is not intended for publication and cannot be cited in future cases except as specified by 9th Cir. R. 36-3.