United States v. Sierra-Gaitan

177 F. App'x 622

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2006
• Docket: No. 05-50402
• Status: Published

Opinion

MEMORANDUM

**

Luis Enrique Sierra-Gaitan appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326.

Sierra-Gaitan contends that the holding of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is severely limited, and that the district court violated his constitutional rights in enhancing his sentence under 8 U.S.C. § 1326(b) based on a non-jury fact finding regarding his prior conviction. See United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (holding that we are bound to follow Almendarez-Torres, even though it has been called into question, unless it is explicitly overruled by the Supreme Court). Similarly, there is no merit to Sierra-Gaitan’s remaining contention that 8 U.S.C. § 1326(b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Ochoa-Gaytan, 265 F.3d 837, 845-46 (9th Cir.2001) (holding that Apprendi carved out an exception for prior convictions that specifically preserved the holding of Almendarez-Torres ). Sierra-Gaitan concedes that his contentions are foreclosed by this court’s recent decisions, but raises them to preserve the issues on appeal.

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.