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United States v. Garcia

United States Court of Appeals, Ninth Circuit
Feb 16, 2006
166 F. App'x 981 (9th Cir. 2006)

Opinion

Submitted February 13, 2006.

This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Jason M. Ohta, Office of the U.S. Atty., San Diego, CA, for Plaintiff-Appellee.

Siri Shetty, San Diego, CA, for Defendant-Appellant.


Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-04-02112-MLF.

Before: FERNANDEZ, RYMER, and BYBEE, Circuit Judges.

MEMORANDUM

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.

Pedro Chavez-Garcia appeals the sentence imposed following his guilty plea conviction for deported alien found in the United States, in violation of 8 U.S.C. § 1326.

Chavez-Garcia contends that the district court violated his constitutional rights in enhancing his sentence under 8 U.S.C. § 1326(b) and § 2L1.2(b)(i) of the advisory Sentencing Guidelines based on a prior criminal conviction that was neither proved beyond a reasonable doubt to a jury nor admitted as part of the guilty plea. Chavez-Garcia's contention is foreclosed by this Circuit's case law. See United States v. Delaney, 427 F.3d 1224 1226 (9th Cir.2005) (holding that the fact of a prior conviction for sentencing purposes need not be proved to a jury or admitted by defendant to satisfy the Sixth Amendment); United States v. Moreno-Hernandez, 419 F.3d 906, 914 n. 8 (9th Cir.2005) (explaining that a district judge's enhancement of a sentence, based on the fact of a prior conviction under U.S. S.G. § 2L1.2, does not raise any Sixth Amendment problems); United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (holding that we are bound to follow Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), even though it has been called into question, unless it is explicitly overruled by the Supreme Court).

AFFIRMED.


Summaries of

United States v. Garcia

United States Court of Appeals, Ninth Circuit
Feb 16, 2006
166 F. App'x 981 (9th Cir. 2006)
Case details for

United States v. Garcia

Case Details

Full title:UNITED STATES of America, Plaintiff--Appellee, v. Pedro Chavez GARCIA…

Court:United States Court of Appeals, Ninth Circuit

Date published: Feb 16, 2006

Citations

166 F. App'x 981 (9th Cir. 2006)