United States v. Ruiz-Gonzalez

62 F. App'x 196

Opinion

MEMORANDUM

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Juan Ruiz-Gonzalez challenges the constitutionality of his conviction and sentence under 8 U.S.C. § 1326(b)(2). Ruiz-Gonzalez contends that we violate due process when we authorize the district court, rather than a jury, to determine that Ruiz-Gonzalez was convicted of an aggravated felony prior to re-entering the United States. See 8 U.S.C. § 1326(b)(2) (raising the maximum sentence from two years to 20 years where the re-entering alien was removed after conviction for an aggravated felony). The Supreme Court rejected this argument in Almendarez-Torres v. United States, 523 U.S. 224, 239, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

Ruiz-Gonzalez argues that we are not bound by Almendarez-Torres because the Supreme Court’s decision in Ring v. Arizona, 586 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) “implicitly overruled” Almendarez-Torres. We are bound, however, by Almendarez-Torres unless and until Almendarez-Torres is expressly overruled by the Supreme Court. United States v. Pacheco-Zepeda, 234 F.3d 411, 411 (9th Cir.), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001). Ring does not purport to expressly overrule Almendarez-Torres. See 536 U.S. at -, 122 S.Ct. at 2437 n.4.

The judgment is 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.