United States v. Salvador Ortiz-Uresti

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 17-1688 _____________ UNITED STATES OF AMERICA v. SALVADOR ORTIZ-URESTI, Appellant ______________ Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5-16-cr-00418-001) District Judge: Hon. Edward G. Smith ______________ Submitted Under Third Circuit L.A.R. 34.1(a) January 25, 2018 ______________ Before: HARDIMAN, VANASKIE, and SHWARTZ, Circuit Judges. (Filed: January 31, 2018) ______________ OPINION * ______________ SHWARTZ, Circuit Judge. Salvador Ortiz-Uresti pleaded guilty to one count of illegal reentry after deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He now appeals his forty- * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. eight month prison sentence on the ground that the District Court erred in concluding that his Colorado drug conviction constituted an “aggravated felony,” and thereby incorrectly raised the statutory maximum sentence from two years’ to twenty years’ imprisonment. He also contends that the District Court erred in imposing a term of supervised release. For the reasons set forth below, we will affirm. I Ortiz-Uresti, a native and citizen of Mexico, pleaded guilty in 2000 to a drug offense in violation of Colo. Rev. Stat. Ann. § 18-18-405, and was sentenced to four years’ imprisonment. A year later, he was removed from the United States to Mexico. In 2015, Ortiz-Uresti was arrested in Reading, Pennsylvania, pleaded guilty to state firearm and drug trafficking charges, and was sentenced to twenty-two to forty-eight months’ imprisonment. After his arrest, he was interviewed by U.S. Immigrations and Customs Enforcement agents, and he admitted that he did not have permission to return to the United States and was in the country illegally. Ortiz-Uresti was then charged in federal court with one count of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, to which he pleaded guilty. At the plea hearing, the District Court asked the Government to identify the aggravated felony that triggered the enhanced maximum sentence under § 1326(b)(2). The Government stated that “in January of 2000, [Ortiz-Uresti] pled guilty to possession with intent to distribute a Schedule 2 controlled substance in the state of Colorado, and was sentenced to four years[’] imprisonment in March of 2000.” App. 22-23. Addressing Ortiz-Uresti, the District Court asked: “do you admit that you were in fact previously found guilty of 2 possession with intent to deliver . . . [i]n Colorado?” App. 23. Ortiz-Uresti replied “Yes,” App. 23, and agreed with the Government that in 2000, he “was arrested, charged and convicted for a drug trafficking offense,” App. 32. The District Court also asked Ortiz-Uresti whether he understood that because of his prior conviction for an aggravated felony, he faced a maximum sentence of twenty years’ imprisonment, pursuant to § 1326(b)(2), and Ortiz-Uresti answered that he did. Ortiz-Uresti’s Presentence Investigation Report (“PSR”) recommended applying an eight-level enhancement because he had been deported for a “felony drug distribution conviction.” PSR ¶ 17. The PSR ...

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