Opinion
No. 08-30108.
The panel unanimously finds this case suitable for decision without oral argument and therefore denies appellant's request for oral argument. See Fed.R.App.P. 34(a)(2).
Filed July 1, 2009.
Jane Kirk, Assistant U.S. Attorney, USSP-Office of the U.S. Attorney, Yakima, WA, for Plaintiff-Appellee.
Kraig Gardner, Esquire, Rebecca Louise Pennell, Esquire, Assistant Federal Public Defender, FDWAID-Federal Defenders of Eastern Washington Idaho, Yakima, WA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Washington, Lonny R. Suko, District Judge, Presiding. D.C. No. 2:07-cr-02075-LRS.
Before: PAEZ, TALLMAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Gerardo Garcia-Sanchez appeals from the 47-month sentence imposed following his guilty-plea conviction for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Garcia-Sanchez contends that after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is no longer good law. As Garcia-Sanchez concedes, this contention is fore-closed. United States v. Maciel-Vasquez, 458 F.3d 994, 995-96 (9th Cir. 2006).
Garcia-Sanchez also contends that the district court erred when it found that his prior conviction qualified as an aggravated felony and when it determined that the prior conviction pre-dated his deportation. These contentions are foreclosed. See United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir. 2006); United States v. Mendoza-Zaragoza, 567 F.3d 431, 434-37 (9th Cir. 2009).
Finally, Garcia-Sanchez contends that, under the doctrine of constitutional avoidance, Almendarez-Torres should be construed to apply only to the bare fact of a prior conviction. This contention is fore-closed. See United States v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007) (en banc) (holding the date of a prior conviction is part of the "fact" of a prior conviction for Apprendi purposes).