United States v. Estrella-Acosta

222 F. App'x 580

Opinion

MEMORANDUM

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Salvador Estrella-Aeosta appeals from his conviction and the 21-month sentence imposed for attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Estrella-Aeosta first contends that the district court erred by refusing to dismiss his indictment because the indictment failed to allege an overt act that was a substantial step, an essential element of his offense of attempted entry. This contention is foreclosed. See United States v. Resendiz-Ponce, - U.S. -, 127 S.Ct. 782, 788, 166 L.Ed.2d 591 (2007).

Estrella-Aeosta next contends that the district court erred when it failed to dismiss his indictment because of improper grand jury instructions. Estrella-Aeosta acknowledges that United States v. Navarro-Vargas, 408 F.3d 1184, 1204-08 (9th Cir.2005) (en banc), forecloses all of his grand jury challenges, except for his challenge to the instruction related to potential punishment for a crime. However, we have held that this grand jury instruction is constitutional. See United States v. Cortez-Rivera, 454 F.3d 1038, 1040-41 (9th Cir.2006). Accordingly, his contention is foreclosed.

Finally, Estrella-Aeosta contends that the district court erred by increasing his sentence pursuant to 8 U.S.C. § 1326(b)(2) based on a prior conviction that he did not admit, and was not found beyond a reasonable doubt. He also contends that in light of subsequent Supreme Court decisions, Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has been overruled and that § 1326(b) is unconstitutional. These contentions are foreclosed. See United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005); see also United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006) (reaffirming the validity of Almendarez-Torres and rejecting a challenge to the constitutionality of § 1326(b)).

AFFIRMED.

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