United States v. Miguel Avila-Quezada

372 F. App'x 790

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 31, 2010
• Docket: 09-50303
• Status: Unpublished

Opinion

MEMORANDUM **

Miguel Angel Avila-Quezada appeals from the 57-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Avila-Quezada contends that the district court procedurally erred by, among other things, applying a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii) because there was insufficient evidence as to the nature of his predicate conviction. The district court did not err by relying on the uncontroverted pre-sentence report to determine that Avila-Quezada’s conviction was categorically a violent felony. See United States v. Romero-Rendon, 220 F.3d 1159, 1165 (9th Cir.2000); see also United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir.2009) (per curiam).

Next, he asserts that the fact of the prior conviction was required to be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt. This contention lacks merit. See Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); see also United States v. Almazan-Becerra, 482 F.3d 1085, 1091 (9th Cir.2007).

Avila-Quezada also contends that the district court insufficiently explained why it rejected his downward-departure motion for cultural assimilation. This contention is belied by the totality of the record, which contained an adequate explanation. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc).

Finally, he argues his sentence is substantively unreasonable pursuant to United States v. Amezcua-Vasquez, 567 F.3d 1050, 1058 (9th Cir.2009), because, among other reasons, his qualifying crime-of-violence conviction was too stale. However, in the instant case, unlike the offense in Amezcuar-Vasquez, the predicate felony was not too old to score under the Sen tencing Guidelines’ criminal history provisions. See U.S.S.G. § 4A1.2(e)(l); see also Amezcua-Vasquez, 567 F.3d at 1058 (“We make no pronouncement as to the reasonableness of a comparable sentence were Amezcua’s conviction more recent[.]”). The record reflects that the sentence imposed was substantively reasonable, under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 53-60, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.