United States v. Felipe Zepeda-Martinez

In United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir.2006), we determined that Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) prevents a sentencing court from enhancing an alien’s sentence based upon a removal subsequent to a prior conviction unless that removal has been admitted by the defendant or proven to a jury beyond a reasonable doubt. Covian-Sandoval, 462 F.3d at 1097 . We now must decide whether harmless error review applies to such an error when the issue has properly been raised below. In light of the Supreme Court’s ruling in Washington v. Recuenco, — U.S. -, 126 S.Ct. 2546 , 165 L.Ed.2d 466 (2006), we hold that Apprendi errors are reviewed for harmlessness using the framework of Neder v. United States, 527 U.S. 1 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999). Because we conclude that the sentencing court’s error was harmless, we affirm.

I.

On September 5, 2004, appellant Felipe Zepeda-Martinez (“Zepeda”) was found by customs agents near Otay Mesa, Califor nia. After being read and waiving his Miranda rights, Zepeda admitted that he was a citizen and native of Mexico with no legal right to be in the United States. On November 5,…