United States v. Bernal-Portillo

279 F. App'x 536

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2008
• Docket: Nos. 07-10344, 07-10345
• Status: Published

Opinion

MEMORANDUM

**

In these consolidated cases, Noe Bernal-Portillo appeals from the 80-month sentence imposed following his guilty-plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326.¹ We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Bernal-Portillo contends that his sentence enhancement, based on a prior conviction that was not alleged in the indictment, proved beyond a reasonable doubt, or admitted during plea proceedings, is unconstitutional. He further contends that, under the doctrine of constitutional avoidance, § 1326 should be construed to require proof beyond a reasonable doubt of a prior conviction used to enhance a sentence. As Bernal-Portillo concedes, these contentions are foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 243-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir.2007) (en banc); United States v. Zepeda-Martinez, 470 F.3d 909, 912 (9th Cir.2006).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . Bernal-Portillo does not raise any contentions regarding the 24-month sentence imposed in district court case CR-00-00294-PMP following revocation of supervised release,