Gastelum-Hernandez

MEMORANDUM **

Luis Enrique Gastelum-Hernandez appeals from his sentence of eight months in prison and two 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.

Gastelum-Hernandez contends that it was error for the district court to increase the statutory maximum for his sentence because the indictment did not allege that he was previously removed subsequent to his prior conviction. We agree. See United States v. Salazar-Lopez, 506 F.3d 748, 751 (9th Cir.2007).

Gastelum-Hernandez contends that this error is structural error. He is incorrect. See id. at 752-55 .

Because Gastelum-Hernandez did not object below, we review for plain error, and we conclude that Gastelum-Hernandez has not met his burden of proving that his substantial rights were affected. See United States v. Cotton, 535 U.S. 625, 631-32 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002); United States v. Covian-Sandoval, 462 F.3d 1090, 1093 (9th Cir.2006), cert. denied, - U.S. -, 127 S.Ct. 1866 , 167 L.Ed.2d 355 (2007).

In addition, Gastelum-Hernandez contends that Almendarez-Torres v. United…