United States v. Carvajal-Osorio

249 F. App'x 636

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 1, 2007
• Docket: No. 05-10522
• Status: Published

Opinion

MEMORANDUM

**

Ricardo Guillermo Carvajal-Osorio appeals from the 57-month sentence imposed following his guilty-plea conviction for illegal re-entry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm and remand.

Carvajal-Osorio’s contention regarding the continuing validity of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), as well as his contention that the district court erred by enhancing his sentence under 8 U.S.C. § 1326(b) based on non-jury fact-finding regarding his prior conviction are both foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006); United States v. Weiland, 420 F.3d 1062, 1080 n. 16 (9th Cir.2005); United States v. Quintana-Quintana, 383 F.3d 1052,1053 (9th Cir.2004) (order).

Carvajal-Osorio next contends that the district court impermissibly double counted his prior conviction in order to increase his sentence. We disagree.

We have previously determined that using a prior conviction as a basis for a sentencing enhancement and in calculating a defendant’s criminal history score is not impermissible double counting. See United States v. Luna-Herrera, 149 F.3d 1054, 1055-56 (9th Cir.1998); see also United States v. Blanco-Gallegos, 188 F.3d 1072, 1076 (9th Cir.1999) (stating that it was not error for the district court to increase an offense level by 16 levels, pursuant to 8 U.S.C. § 1326(b)(2), based on a conviction for possession of a controlled substance for sale and also be given three criminal history points for that same conviction); United States v. Parker, 136 F.3d 653, 654-55 (9th Cir.1998).

Finally, we determine that the 57-month sentence is reasonable. See United States v. Plouffe, 445 F.3d 1126, 1131 (9th Cir.), cert, denied, — U.S.-, 126 S.Ct. 2314, 164 L.Ed.2d 832 (2006); see also United States v. Knows His Gun, 438 F.3d 913, 918 (9th Cir.2006) (stating that the district court is not required to address every section 3553 factor).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)).

AFFIRMED; REMANDED.

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