United States v. Martinez Aviles

163 F. App'x 556

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 18, 2006
• Docket: No. 05-50583
• Status: Published

Opinion

MEMORANDUM

**

Michael Ivan Martinez Aviles appeals the sentence imposed following his guilty plea to being an illegal alien found in the United States following deportation and conviction.

Aviles contends that 8 U.S.C. § 1326(b), which increases the maximum sentence for illegal reentry based on facts that do not have to be proved to a jury beyond a reasonable doubt, is unconstitutional. This contention, as Aviles concedes and preserves in the event of a Supreme Court holding to the contrary, is foreclosed. See United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (noting that we continue to be bound by the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that a district court may enhance a sentence on the basis of prior convictions, even if the fact of those convictions was not found by a jury beyond a reasonable doubt).

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

AFFIRMED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.