Opinion
No. 07-50560.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed July 3, 2008.
Valerie H. Chu, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Timothy R. Garrison, Janet C. Tung, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Thomas J. Whelan, District Judge, Presiding. D.C. No. CR-04-01055-W.
Before: REINHARDT, LEAVY, and CLIFTON, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
José Martinez-Guevara appeals the sentence imposed upon revocation of his supervised release. He contends that the district court's judicial fact findings in support of the revocation sentence were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In United States v. Huerta-Pimental we upheld the constitutionality of the supervised release scheme set forth in 18 U.S.C. § 3583. United States v. Huerta-Pimental, 445 F.3d 1220, 1221 (9th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 545, 166 L.Ed.2d 403 (2006). Martinez-Guevara contends that Huerta-Pimental was undercut by Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (invalidating California's determinate sentencing law), and no longer is good law. This contention is foreclosed by United States v. Santana, 526 F.3d 1257, 1262 (9th Cir. 2008).