United States v. Cervantes-Sarmiento

PER CURIAM.*

Rodolfo Cervantes-Sarmiento appeals his guilty-plea conviction and sentence for being found in the United States, without permission, following deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1). For the first time on appeal, Cervantes-Sarmiento argues that 8 U.S.C. § 1326(b) is unconstitutional on its face and as applied in his case because it treats a prior conviction for a felony or aggravated felony as a sentencing factor and not as an element of the offense. He contends that the unconstitutional portion of 8 U.S.C. § 1326 should be severed from the statute. He asks us…