United States of America v. Mario Serrano-Arredondo, a.k.a. Bugsly, a.k.a. Mario Serrano

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO SERRANO-ARREDONDO,
a.k.a. Bugsly, a.k.a. Mario Serrano,
Defendant - Appellant.
No. 09-50445
D.C. No. 2:08-cr-00628-ABC
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief Judge, Presiding
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Mario Serrano-Arredondo appeals from his conditional guilty-plea
conviction and 46-month sentence for being an illegal alien found in the United
States following deportation, in violation of 8 U.S.C. § 1326(a). We have
FILED
OCT 05 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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jurisdiction under 28 U.S.C. § 1291. We affirm, but remand to correct the
judgment.
Serrano-Arredondo contends that the district court’s jury instructions
regarding acquired citizenship violated his due process rights because they
impermissibly shifted the burden of proof. The contested instructions accurately
instructed the jury to consider evidence of Serrano-Arredondo’s acquired
citizenship when determining whether the Government met its burden of proving
alienage beyond a reasonable doubt, and did not unconstitutionally shift the burden
of proof. See United States v. McKittrick, 142 F.3d 1170, 1177 (9th Cir. 1998).
Serrano-Arredondo further argues that his sentence is unconstitutional
because the district court applied an enhancement based on prior convictions that
were found by the judge and were not admitted by him nor proven to a jury beyond
a reasonable doubt. This argument is foreclosed. See Almendarez-Torres v.
United States, 523 U.S. 224 (1998); see also United States v. Covian-Sandoval,
462 F.3d 1090, 1096-97 (9th Cir. 2006) (concluding that the district court can
enhance a sentence based on its own finding of the fact of a prior felony
conviction).
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062
(9th Cir. 2000), we remand the case to the district court with instructions that it

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delete from the judgment the incorrect reference to § 1326(b)(2). See United States
v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to
delete the reference to § 1326(b)).
AFFIRMED; REMANDED to correct judgment.

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