United States v. Banda-Rodriguez

149 F. App'x 623

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 15, 2005
• Docket: No. 05-10124
• Status: Published

Opinion

MEMORANDUM

**

Hector David Banda-Rodruiguez appeals the 46-month sentence imposed following his guilty plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 .U.S.C. § 3742(a), and we affirm.

Banda-Rodruiguez, who was sentenced under advisory guidelines in the wake of United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (U.S.2005), contends nonetheless that his sentence violates the Sixth Amendment because it was enhanced on the basis of the trial court’s finding that he had committed a drug trafficking offense which was neither admitted to by him nor alleged in the indictment. This claim is foreclosed by United States v. Moreno-Hernandez, No. 03-30387, 419 F.3d 906, 914 n. 8 (9th Cir.2005) (holding that an 8 U.S.C. § 1326(b) sentence enhancement based on the fact of a prior conviction for assault raised no Sixth Amendment problems).

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 9th Cir. R. 36-3.