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NOT FOR PUBLICATION OCT 04 2010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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