United States v. Medina-Garcia

115 F. App'x 356

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2004
• Docket: No. 04-50246
• Status: Published

Opinion

MEMORANDUM

**

Victoriano Medina-Garcia appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326.

We lack jurisdiction to review the district court’s denial of his request for a downward departure because there is no indication in the record that the district court believed it lacked the authority to depart based on the reasons requested by Medina-Garcia. United States v. Linn, 362 F.3d 1261 (9th Cir.2004) (reaffirming that discretionary refusals to depart downward are unreviewable).

Citing Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Medina-Garcia contends that the district court violated his rights to a jury trial and due process by imposing a 16-level enhancement based on a prior crime of violence, without proof to a jury beyond a reasonable doubt or an admission by Medina-Garcia. This contention is foreclosed by United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004) (order) (observing that Blakely preserved the rule that a sentencing enhancement based on a prior conviction need not be presented to a jury).

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 Ninth Circuit Rule 36-3.