Opinion
No. 06-10701.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed August 21, 2007.
Robert H. Bork, Esq., U.S. Attorney's Office, Las Vegas, NV, for Plaintiff-Appellee.
Paul D. Riddle, Esq., Law Office of the Federal Public Defender, Las Vegas, NV, for Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada, Lloyd D. George, District Judge, Presiding. D.C. No. CR-05-00345-LDG.
Before: KLEINFELD, SILVERMAN, and M. SMITH, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Antonio Reyes-Melgoza appeals from the 41-month sentence imposed following his guilty-plea conviction for unlawful reentry of a deported alien, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Reyes-Melgoza contends that the district court erred by increasing his sentence pursuant to 8 U.S.C. § 1326(b)(2) based on a prior conviction that he did not admit, and a jury did not find beyond a reasonable doubt. As he concedes, this contention is foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006).
Reyes-Melgoza further contends that pursuant to Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004), the avoidance of constitutional doubt doctrine requires the Court to construe 8 U.S.C. § 1326 such that a two-year statutory maximum applies to his offense, and to reject the holding of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). This Court, however, has recently reaffirmed that the fact of a prior conviction need not be proven to a jury or admitted in order to increase a defendant's statutory maximum sentence under § 1326(b), and that Almendarez-Torres remains binding and controlling precedent. See Beng-Salazar, 452 F.3d at 1091; see also United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc). Accordingly, the doctrine of avoidance of constitutional doubt does not require the statute and Guidelines to be construed otherwise.