United States v. Villaseñor

210 F. App'x 679

Opinion

MEMORANDUM

**

Leonel Villaseñor appeals the district court’s denial of resentencing after a remand and makes several claims. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

The district court’s sentence was reasonable. The court adequately considered the sentencing factors set forth in 18 U.S.C. § 3553(a), and thus, we will not disturb its discretion.¹

Villaseñor contends that his sentencing enhancements and classification as a career offender violate the due process clause and the Sixth Amendment. Apprendi v. New Jersey² specifically excepted prior convictions from those facts that a jury must find beyond a reasonable doubt in order to enhance a sentence.³ Because career offender status rests on prior convictions, the prior conviction exception extends to career offender determinations by the district court.⁴

Villaseñor further argues that the mandatory minimum sentence under 21 U.S.C. §§ 841 and 851 violates his Sixth Amendment rights. United States v. Dare⁵ precludes this claim.⁶

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.

1 . United States v. Knows His Gun, 438 F.3d 913, 918-19 (9th Cir.2006) (holding that where the district court explicitly considers some of the § 3553(a) factors, this Court will affirm the sentencing court).

2 . 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

3 . Id. at 490, 120 S.Ct. 2348.

4 . United States v. Brown, 417 F.3d 1077, 1079-80 (9th Cir.2005).

5 . 425 F.3d 634 (9th Cir.2005).

6 . Id. at 635-36 (citing Harris v. United States, 536 U.S. 545, 568-69, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)) ("mandatory minimum sentence imposed through judicial factfinding utilizing a preponderance of the evidence standard does not violate the Sixth Amendment”).