United States v. Ortiz-Cardenas

196 F. App'x 561

Opinion

MEMORANDUM

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Patricio Ortiz-Cardenas appeals from the sentence imposed by the district court following revocation of his supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Ortiz-Cardenas contends that the supervised release revocation procedure set forth in 18 U.S.C. § 3583 and Federal Rule of Criminal Procedure 32.1(b) is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in that it does not provide for a jury determination of all facts beyond a reasonable doubt necessary to justify incarceration. This contention is foreclosed by United States v. Huerta-Pimental, 445 F.3d 1220, 1224 (9th Cir.2006) (holding that “[bjecause the revocation of supervised release and the subsequent imposition of additional imprisonment is, and always has been, fully discretionary, it is constitutional under Booker, ” and that “[i]t is clear from Booker that there is no Sixth Amendment Apprendí violation so long as the Guidelines are advisory”).

Because Ortiz-Cardenas’ challenge pursuant to Apprendi and Booker fails, we need not address Ortiz-Cardenas’ contentions as to what remedy is applicable.

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.