United States v. Medina-Valenzuela

171 F. App'x 32

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2006
• Docket: No. 05-50702
• Status: Published

Opinion

MEMORANDUM

**

David Medina-Valenzuela appeals the 30-month sentence imposed under the advisory Guidelines scheme following his guilty plea to attempted entry after deportation, in violation of 8 U.S.C. § 1326. He contends that the district court violated his constitutional rights in enhancing his sentence under 8 U.S.C. § 1326(b) and U.S.S.G. § 2L1.2(b)(l)(A) because of facts — a prior aggravated felony conviction and the fact that the conviction preceded his deportation — neither charged in the indictment, proved beyond a reasonable doubt to a jury, nor admitted as part of the guilty plea. He contends that this court should hold that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is limited to the precise holding that a prior conviction that increases the maximum penalty need not be alleged in the indictment when the conviction is admitted during a guilty plea, and that Almendarez-Torres and this court’s caselaw have been effectively overruled by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and other recent Supreme Court decisions. These contentions are foreclosed. See United States v. Weiland, 420 F.3d 1062,1079 n. 16 (9th Cir.2005).

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.