Opinion
Nos. 07-10344, 07-10345.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed May 23, 2008.
Robert A. Bork, Esq., Robert L. Ellman, Esq., Office of the U.S. Attorney, Las Vegas, NV, for Plaintiff-Appellee.
Brenda Weksler, Esq., 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. Nos. CR-00-00294-PMP, CR-06-00323-PMP.
Before: PREGERSON, TASHIMA, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
In these consolidated cases, Noe Bernal-Portillo appeals from the 80-month sentence imposed following his guilty-plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Bernal-Portillo does not raise any contentions regarding the 24-month sentence imposed in district court case CR-00-00294-PMP following revocation of supervised release.
Bernal-Portillo contends that his sentence enhancement, based on a prior conviction that was not alleged in the indictment, proved beyond a reasonable doubt, or admitted during plea proceedings, is unconstitutional. He further contends that, under the doctrine of constitutional avoidance, § 1326 should be construed to require proof beyond a reasonable doubt of a prior conviction used to enhance a sentence. As Bernal-Portillo concedes, these contentions are foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 243-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc); United States v. Zepeda-Martinez, 470 F.3d 909, 912 (9th Cir. 2006).
AFFIRMED.