United States v. Valladares-Puerto

235 F. App'x 592

Opinion

MEMORANDUM

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Jose Antonio Valladares-Puerto appeals from the 15-month sentence imposed following his guilty plea to being a deported alien found in the United States, in violation of 8 U.S.C. § 1326.

Valladares-Puerto contends that any reliance by the district court on a reinstatement of removal order for purposes of imposing a four-level upward adjustment in his offense level under U.S.S.G. § 2L1.2(b)(l)(D) violated his due process rights because the applicable regulations are ultra vires to the Attorney General’s legislative authority. We reject this contention. See also United States v. Luna-Madellaga, 315 F.3d 1224 (9th Cir.2003); see also United States v. Diaz-Luevano, No. 05-50129, 494 F.3d 1159, 1162-63, 2007 WL 2044256 at *2-3 (9th Cir. July 18, 2007).

Valladares-Puerto further contends that the district court erred in sentencing him pursuant to 8 U.S.C. § 1326(b) to more than the maximum set forth in 8 U.S.C. § 1326(a). He also asserts that, in light of Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has been overruled and § 1326(b) is unconstitutional. These contentions are foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088 (9th Cir.2006) (rejecting as foreclosed the contention that Shepard limited the Almendarez-Torres holding to cases where a defendant has admitted his prior convictions during a guilty plea and affirming the validity of Almendarez-Torres).

AFFIRMED.

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