United States v. Diaz-Valdez

201 F. App'x 547

Opinion

MEMORANDUM

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Humberto Diaz-Valdez appeals the sentence imposed following his guilty plea to being found in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Diaz-Valdez contends that the district court erred in sentencing him pursuant to 8 U.S.C. § 1326(b)(2) to more than the two-year maximum set forth in § 1326(a) on the basis of the finding that he had a prior felony conviction that preceded his deportation when those facts were not charged in the indictment, admitted, or proved to a jury. He argues that the doctrine of constitutional avoidance requires that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), be limited to the holding that the maximum penalty may be increased on the basis of a judicial finding regarding the fact of a prior conviction, and not be extended to allow judicial findings regarding facts about a prior conviction. This contention is foreclosed. See United States v. Castillo-Rivera, 244 F.3d 1020, 1025 (9th Cir.2001).

Diaz-Valdez also contends that intervening Supreme Court decisions have overruled Almendarez-Torres and this court’s decisions interpreting Almendarez-Torres to allow sentence increases upon a judicial finding of the fact of a prior conviction. As he recognizes, this contention also is foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006).

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.