Martinez

*659 MEMORANDUM **

In January 2005, Jose Luis Martinez was convicted by a jury under 8 U.S.C. § 1326 of being a previously deported alien found in the United States. On appeal, he argues the district court erred by not granting his motion to dismiss the § 1326 charges. In the alternative, he argues the court erred by refusing to allow him to present evidence regarding the lawfulness of his deportation to the jury. He then argues the court erred by finding him competent to stand trial despite his insistence on taking the stand and testifying regarding irrelevant matters. He also argues the court erred when sentencing him by relying on facts not alleged in the indictment or found by a jury. Finally, he argues that § 1326 is unconstitutional. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm Martinez’s conviction and sentence. Because the parties are familiar with the facts, we do not recite them in detail.

We review de novo a denial of a motion to dismiss an 8 U.S.C. § 1326 indictment “when the motion is based upon an alleged due process defect in the underlying deportation proceeding.” United States v. Pallares-Galan, 359 F.3d 1088, 1094 (9th Cir.2004). Because the…