United States v. Garcia

166 F. App'x 981

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 16, 2006
• Docket: No. 05-50495
• Status: Published

Opinion

MEMORANDUM

**

Pedro Chavez-Garcia appeals the sentence imposed following his guilty plea conviction for deported alien found in the United States, in violation of 8 U.S.C. § 1326.

Chavez-Garcia contends that the district court violated his constitutional rights in enhancing his sentence under 8 U.S.C. § 1326(b) and § 2L1.2(b)(i) of the advisory Sentencing Guidelines based on a prior criminal conviction that was neither proved beyond a reasonable doubt to a jury nor admitted as part of the guilty plea. Chavez-Garcia’s contention is foreclosed by this Circuit’s case law. See United States v. Delaney, 427 F.3d 1224 1226 (9th Cir.2005) (holding that the fact of a prior conviction for sentencing purposes need not be proved to a jury or admitted by defendant to satisfy the Sixth Amendment); United States v. Moreno-Hernandez, 419 F.3d 906, 914 n. 8 (9th Cir.2005) (explaining that a district judge’s enhancement of a sentence, based on the fact of a prior conviction under U.S.S.G. § 2L1.2, does not raise any Sixth Amendment problems); United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (holding that we are bound to follow Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), even though it has been called into question, unless it is explicitly overruled by the Supreme Court).

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.