United States v. Orozco-Quiroz

197 F. App'x 686

Opinion

MEMORANDUM

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Gerardo Orozco-Quiroz appeals his 70-month sentence imposed following his conviction for illegal reentry into the United States in violation of 18 U.S.C. § 1326. Orozco first argues that the district court imposed an unreasonable sentence in light of his mental illness and in consideration of the factors set forth under 18 U.S.C. § 3553(a). Orozco next argues that the district court improperly applied an enhancement based on Orozco’s recidivism and prior conviction and that said enhancement violated his Six Amendment rights because those facts were not admitted or found by a jury beyond a reasonable doubt. We reject these arguments and affirm the district court’s imposition of sentence.

Orozco’s first argument is without merit. The district court appropriately calculated the advisory guideline range and considered the factors listed in 18 U.S.C. § 3553(a). The district court chose a sentence that would deter future reentries by Orozco, would protect the public, would promote respect for the law, and would avoid unwarranted sentencing disparities. At the same time, the sentence accounted for Orozco’s psychotic disorder, as the court expressly stated. The sentence reflects the district court’s careful application of the guidelines and the factors in section 3553(a) to Orozco and his offense.

Orozco’s second argument is also without merit. Orozco argues that the Supreme Court’s reasoning and holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) that prior convictions need not be admitted or found by a jury have been undermined by recent decisions, such as Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We have revisited this issue several times and have held firm in our conclusion that speculation about the demise of Almendarez-Torres is immaterial. United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000); see also Hohn v. United States, 524 U.S. 236, 252-53, 118 S.Ct. 1969, 141 L.Ed.2d 242 (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”); Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (lower courts should “leav[e] to this Court the prerogative of overruling its own decisions”).

AFFIRMED.

RAWLINSON, Circuit Judge, concurring.

I concur in the result.

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.