Opinion
No. 07-30036.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed August 20, 2007.
Byron G. Chatfield, Office of the U.S. Attorney, Eugene, OR, for Plaintiff-Appellee.
Tonia L. Moro, Esq., Federal Public Defender's Office, Medford, OR, for Defendant-Appellant.
Appeal from the United States District Court for the District of Oregon Michael R. Hogan, District Judge, Presiding. D.C. No. CR-05-30033-MRH.
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.
Jorge Villegas-Cavada appeals from the 51-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.
Villegas-Cavada contends that the district court erred by enhancing his sentence. Specifically, he asserts that his 2004 removal, which was executed pursuant to a reinstated removal order entered by an immigration official, was unlawful and cannot satisfy the removal requirement of 8 U.S.C. § 1326(b) and U.S.S.G. § 2L1.2. This contention is foreclosed. See United States v. Diaz-Luevano, 494 F.3d 1159, 1162-63, No. 05-50129, 2007 WL 2044256, *2-3 (9th Cir. July 18, 2007) (per curiam).
Villegas-Cavada contends that pursuant to Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), 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). As Villegas-Cavada concedes, this contention is foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006); see also United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc).