Guzman-Flores

MEMORANDUM **

Defendant-Appellant, Tomas Guzman-Flores, appeals the sentence imposed for his judgment of conviction entered in the District Court on February 6, 2007, for being present in the United States after having been deported, in violation of 8 U.S.C. § 1326 . Guzman-Flores claims that (1) the District Court erred by imposing a sixteen-level crime-of-violence enhancement pursuant to U.S.S.G. § 2L1.2(b)(A)(ii) based on Guzman-Flores’s conviction, prior to his deportation, of criminal sexual penetration, because he was not convicted under any categorical crime of violence and no judicially noticeable documents established, based on the specific facts of his offense, that he was convicted of a crime of violence; (2) Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), requires that the applicable statutory maximum sentence was two years incarceration because the date of his deportation was not alleged in the indictment; and (3) the District Court’s judicial finding of the date of deportation was erroneous under Ap-prendi.

On March 6, 1995, in New Mexico state court, Guzman-Flores pled guilty without allocuting to the facts, pursuant to North…