Opinion
No. 06-50108.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 6, 2008.
Becky S. Walker, Esq., Matthew D. Umhofer, Esq., USLA-Office of the U.S. Attorney Criminal Division, Los Angeles, CA, for Plaintiff-Appellee.
Michael Tanaka, Esq., Federal Public Defender's Office, Los Angeles, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Central District of California, Ronald S.W. Lew, District Judge, Presiding. D.C. No. CR-04-01209-RSWL.
Before: HAWKINS, RAWLINSON and M. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir.R. 36-3.
Enrique Martinez-Zamora appeals from the 51-month sentence imposed following his jury-trial conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Martinez-Zamora contends that the district court erred by treating the Guidelines range as the presumptive sentence, ignoring mitigating factors, and failing to adequately explain its sentencing decision. We conclude that the district court did not procedurally err, and the sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); see also United States v. Carty, 520 F.3d 984, 994-96 (9th Cir. 2008) (en banc), cert. denied sub nom. Zavala v. United States, ___ U.S. ___, 128 S.Ct. 2491, 171 L.Ed.2d 780 (2008).
Martinez-Zamora's contentions that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is no longer good law, and that 8 U.S.C. § 1326(b) is unconstitutional, are, as he acknowledges, foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006).
Martinez-Zamora's contention that the supervised release condition requiring him to report to the probation office within 72 hours of any reentry into the United States violates his Fifth Amendment right against self-incrimination is foreclosed by United States v. Abbouchi, 502 F.3d 850, 859 (9th Cir. 2007).