United States v. David Martinez-Rodriguez

A jury convicted David Martinez-Rodriguez (“Martinez”) of re-entering the United States after removal in violation of 8 U.S.C. § 1326 (a). On August 23, 2005, the district court sentenced Martinez to seventy-seven months imprisonment with three years supervised release. Martinez challenges his sentence on two grounds.

First, relying on our decision in United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir.2006), and the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), Martinez argues that the district court improperly found that his prior removal “was subsequent to a conviction for commission of an aggravated felony,” § 1326(b)(2). Martinez argues that he never admitted this fact, nor was this fact ever proven to a jury beyond a reasonable doubt. The district court relied on Martinez’s prior removal subsequent to his aggravated felony conviction to increase his statutory-maximum sentence from two to twenty years under § 1326(b)(2).

Second, Martinez argues that the district court erred in finding that his prior conviction for possession of marijuana for sale under California Health and Safety Code section 11359 was a…