United States v. Vasquez-Falcon

265 F. App'x 559

Opinion

MEMORANDUM

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Arturo Vasquez-Falcon appeals from the 70-month sentence, and the terms of his supervised release, imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Vasquez-Faleon first contends that 8 U.S.C. § 1326(b) is unconstitutional because Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is no longer good law. This contention is foreclosed by our holding in United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006).

Vasquez-Faleon also contends that the condition of release requiring him to “participate in outpatient substance abuse treatment and submit to drug and alcohol testing as instructed by the probation officer,” is impermissible under our decision in United States v. Stephens, 424 F.3d 876 (9th Cir.2005). We need not construe this condition for purposes of this appeal because there was no plain error. See United States v. Maciel-Vasquez, 458 F.3d 994, 996 (9th Cir.2006).

Finally, Vasquez-Faleon contends that certain special conditions of his supervised release are not reasonably related to any enumerated statutory purpose. VasquezFaleon has not carried his burden of persuasion with respect to demonstrating prejudice, and therefore his contention fails. See United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

AFFIRMED.

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