UNITED STATES of America, Plaintiff-Appellee, v. Salvador TOLENTO-MARTINEZ, Defendant-Appellant, 177 F. App'x 679

MEMORANDUM The facts of this case are known to the parties. We conclude that Tolento-Martinez’s 2002 convictions constitute “sexual abuse of a minor” and, therefore, were “aggravated felonies” under 8 U.S.C. § 1326(b)(2). See United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir.1999) (holding that conviction under Cal.Penal Code § 288(

a) for lewd or lascivious act upon a child under the age of fourteen qualified as sexual abuse of a minor). We consider next the district court’s reliance on Tolento-Martinez’s 2004 removal. In United States v. Luna-Madellaga, 315 F.3d 1224 (9th Cir.2003), this court determined that 8 U.S.C. § 1326 “speaks only of ‘removal.’ All that the statute requires is that the alien reenter the United States illegally after having been removed subsequent to an aggravated felony conviction. It plainly turns on the alien’s physical removal—not the order of removal.” Id. at 1226.

We conclude, therefore, that it was appropriate for the district court to rely upon Tolento-Martinez’s 2004 reinstatement of the immigration judge’s 1999 order of deportation. We also find that the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) was not overruled by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), thus foreclosing Tolento-Martinez’s claim that 8 U.S.C. § 1326 is unconstitutional. See United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005).

Furthermore, the district court properly denied Tolento-Martinez’s motion to dismiss the indictment based on improper grand jury instructions. See United States v. Navarro-Vargas, 408 F.3d 1184, 1186 (9th Cir.2005) (en banc). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.