United States v. Francisco Ortiz-Gutierrez

Francisco Ortiz-Gutierrez appeals his conviction and sentence for being found in the United States after having been deported subsequent to a conviction for an aggravated felony. 8 U.S.C. § 1326 . We affirm.

I

We reject the argument that the “found in” provision of 8 U.S.C. § 1326 (a) is unconstitutionally vague. United States v. Ayala, 35 F.3d 423 (9th Cir.1994).

II

We affirm the sentence imposed by the district court. Under the Sentencing Guide lines, if a defendant convicted of violating section 1326 “previously was deported after a conviction for a felony” that did not involve a violation of immigration laws, the court must increase the offense level by four levels. U.S.S.G. § 2L1.2.(b)(l). If the prior conviction was an aggravated felony, section 2L1.2.(b)(2) requires a sixteen level increase. An aggravated felony includes a crime of violence for which the defendant was sentenced to at least five years imprisonment. U.S.S.G. § 2L1.2, comment, (n. 7).

Ortiz-Gutierrez recognizes that robbery is a crime of violence, but argues he was not sentenced to imprisonment for five years or more. He contends that the district court erred in treating his prior conviction as an…