Delgado

MEMORANDUM ***

Defendant Mauricio Jacobo Delgado appeals his conviction and sentence following a jury trial for being a previously deported alien found in the United States, 8 U.S.C. § 1326 . The indictment did not allege a violation of either subsection (a) or (b), but alleged that Delgado “who previously had been excluded, deported and removed from the United States to Mexico, was found in the United States” without consent of the Attorney General or the Secretary of the Department of Homeland Security. Delgado objected pretrial to the indictment, asking for the court to limit the conviction to § 1326(a), with a maximum sentence of two years or to dismiss the indictment for failure to allege all of the elements of a § 1326(b) violation.

Noticeably absent from the indictment was any allegation that Delgado’s deportation/removal was subsequent to an aggravated felony conviction, 8 U.S.C. § 1326 (b)(2). However, after Delgado was convicted, the district court sentenced him under the provisions of § 1326(b)(2), because it found that Delgado was removed subsequent to his aggravated felony conviction. In a case decided after argument in this case, United States v. Salazar-Lopez, 506…