United States v. Maldonado

192 F. App'x 697

Opinion

MEMORANDUM

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Elias Maldonado appeals from the 51-month sentence imposed following a guilty-plea conviction for unlawful reentry by a deported alien in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Maldonado contends that the doctrine of constitutional avoidance requires limiting his sentence to two years, the statutory maximum under 8 U.S.C. § 1326(a), because he did not admit his prior conviction and it was not proven to a jury beyond a reasonable doubt. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See also United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (noting that Almendarez-Torres is binding precedent unless and until it is explicitly overruled by the Supreme Court).

Maldonado also contends that his 51-month sentence is unreasonable because the district court refused to reduce his sentence to account for the unwarranted sentencing disparities caused by the lack of fast-track systems in some districts. This contention is foreclosed by United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir.2006) (concluding that “the disparity between Appellants’ sentences and the sentences imposed on similarly situated defendants who are not prosecuted in fast-track districts is not unwarranted” and that, even if the disparity was unwarranted, that factor alone would not render a sentence unreasonable where the sentence was imposed within the guideline range after considering the guidelines and other Section 3353(a) factors).

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.