Martinez

*54 MEMORANDUM *

Victor Ramirez Martinez appeals his conviction for being an alien found in the United States without permission following deportation pursuant to 8 U.S.C. § 1326 . We affirm the conviction, but vacate the sentence and remand for resentencing.

1. The Fifth Amendment argument was not preserved, so we review for plain error. United States v. Sehnal, 930 F.2d 1420, 1425-26 (9th Cir.1991). Government counsel’s isolated remark may not have been understood by the jury as a comment on Defendant’s failure to testify. But even assuming that error occurred, it was not plain error because the remark did not materially affect the case’s outcome. An immigration judge ordered Defendant deported, and the executed Warrant of Deportation included Defendant’s signature and fingerprints.

2. The sentencing argument was not preserved, so we again review for plain error. United States v. Reyes-Pacheco, 248 F.3d 942, 945 (9th Cir.2001). The unchallenged Presentence Investigation Report stated that the continuing offense under 8 U.S.C. § 1326 started to run on July 9, 2007, a date beyond the fifteen-year maximum prescribed by the United States Sentencing Guidelines. Absent a contrary…