Is a defendant's prior conviction for an aggravated felony a necessary element of 8.C. section 1326(b)(2) of the Criminal Code?

MultiRegion, United States of America

The following excerpt is from U.S. v. Moreno-Hernandez, 1993 WL 280391, 999 F.2d 545 (9th Cir. 1993):

Defendant contends that existence of a prior conviction for an aggravated felony is a necessary element of 8 U.S.C. 1326(b)(2) and that the government's failure to offer proof of an aggravated felony conviction at trial requires his resentencing. This issue has been resolved by United States v. Gonzales-Medina, 976 F.2d 570 (9th Cir.1992). In that case, we held that the existence of a prior felony conviction is a necessary element of an offense under 8 U.S.C. 1326(b) and that the government's failure to prove this element required that defendant's sentences be vacated, and remanded for resentencing. Id. at 572.

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