UNITED STATES of America, Plaintiff-Appellee, v. Miguel DIAZ-CORTEZ, Defendant-Appellant, 199 F. App'x 621

MEMORANDUM Miguel Diaz-Cortez appeals from his conviction by jury trial and his sentence for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Diaz-Cortez first contends that insufficient evidence supports his conviction because the prosecution failed to establish that Diaz-Cortez was physically present at a prior deportation proceeding. The Government, however, does not have to prove physical presence in order to establish a § 1326 violation. See United States v.

Mendoza-Lopez, 481 U.S. 828, 837, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987); see also United States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir.1996) (en banc). We further reject Diaz-Cortez’s contentions that he was entitled to a jury instruction that, under § 1326, the element of deportation requires both that Diaz-Cortez was physically present at a hearing and that an immigration judge entered a final order of deportation against him.

See Alvarado-Delgado, 98 F.3d at 493 (holding that lawfulness of the predicate deportation is not an element of the § 1326 offense and therefore a defendant is not entitled to have that issue determined by a jury). In addition, we hold that the district court’s use of Diaz-Cortez’s prior aggravated felony conviction to enhance his sentence did not violate his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). It is well-settled under Apprendi and Almendarez-Torres v.

United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that the fact of a prior conviction does not need to be alleged in an indictment, submitted to a jury or proved beyond a reasonable doubt. See, e.g., United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.