Opinion
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NOT FOR PUBLICATION.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)
Page 624.
Robert A. Bork, Esq., USLV--Office of The U.S. Attorney, Las Vegas, NV, for Plaintiff-Appellee.
Arthur L. Allen, Esq., FPDNV--Federal Public Defender's Office, Las Vegas, NV, for Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada, Philip M. Pro, District Judge, Presiding. D.C. No. CR-04-00330-PMP.
Before: REINHARDT, RYMER, and HAWKINS, Circuit Judges.
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.
Hector David Banda-Rodruiguez appeals the 46-month sentence imposed following his guilty plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C. § 3742(a), and we affirm.
Banda-Rodruiguez, who was sentenced under advisory guidelines in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (U.S.2005), contends nonetheless that his sentence violates the Sixth Amendment because it was enhanced on the basis of the trial court's finding that he had committed a drug trafficking offense which was neither admitted to by him nor alleged in the indictment. This claim is foreclosed by United States v. Moreno-Hernandez, No. 03-30387, 419 F.3d 906, 914 n. 8 (9th Cir.2005) (holding that an 8 U.S.C. § 1326(b) sentence enhancement based on the fact of a prior conviction for assault raised no Sixth Amendment problems).
AFFIRMED.