Felix-Peraza

MEMORANDUM **

Roberto Felix-Peraza appeals from his sentence of 33 months in prison and three years of supervised release for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Felix-Peraza contends that the district court erred when it enhanced his sentence pursuant to 8 U.S.C. § 1326 (b), finding that he was removed subsequent to a felony conviction. We agree. See United States v. Covian-Sandoval, 462 F.3d 1090, 1097-98 (9th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 1866 , 167 L.Ed.2d 355 (2007). However, because Felix-Peraza did not object below, we review for plain error, and we conclude that he has not met his burden of proving that his substantial rights were affected. See id. at 1095 .

Felix-Peraza also contends that it was structural error because the indictment did not allege that the prior removal was subsequent to the conviction. He is incorrect. See Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998) (recognizing that § 1326(b) contains sentencing facts not elements of the offense); United States v. Salazar-Lopez, 506 F.3d…