United States v. Siriano-Ortiz

298 F. App'x 609

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 4, 2008
• Docket: No. 05-50818
• Status: Published

Opinion

MEMORANDUM

**

Marco Antonio Siriano-Ortiz appeals from the 40-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 under 28 U.S.C. § 1291, and we affirm.

Siriano-Ortiz contends that the district court erred by enhancing his sentence pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii) because his prior conviction for a lewd or lascivious act involving a child under the age of 14 years, in violation of California Penal Code § 288(a), is not categorically a crime of violence. This contention fails. See United States v. Medinar-Maella, 351 F.3d 944, 947 (9th Cir.2003); United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir.1999).

Siriano-Ortiz also contends that the statutory maximum under § 1326 is two years of imprisonment and one year of supervised release because: 1) Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), does not govern under the doctrine of constitutional avoidance; 2) Almendarez-Torres has been overruled; and 3) 8 U.S.C. § 1326(b) is unconstitutional. These contentions fail. See United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006).

AFFIRMED.

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