Opinion
No. 10-50157.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
July 19, 2011.
Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding D.C. No. 3:08-cr-04486-BEN.
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Cayetano Enrique Ayala-Cruz appeals from the 70-month sentence imposed following his conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Ayala-Cruz contends that the district court erred at sentencing because it misunderstood the determinative facts of United States v. Amezcua-Vazquez, 567 F.3d 1050 (9th Cir. 2009). Ayala-Cruz has not demonstrated that this alleged error affected his substantial rights. See United States v. Olano, 507 U.S. 725, 734-35 (1993).
Ayala-Cruz also contends that his sentence is substantively unreasonable under Amezcua-Vasquez because the sentence does not adequately account for the age of his prior convictions and his individual circumstances. In light of the totality of the circumstances and the factors set forth in 18 U.S.C. § 3553(a), the sentence is substantively reasonable. See Amezcua-Vasquez, 567 F.3d at 1057-58.
Ayala-Cruz further contends that his sentence violates his Fifth and Sixth Amendment rights because it was based on facts found by the judge in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). He raises this claim solely to preserve the argument on appeal; as he acknowledges, the claim is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998).
AFFIRMED.