Opinion
No. 08-30477.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 22, 2009.
Byron Chatfield, Assistant U.S., Office of the U.S. Attorney, Medford, OR, for Plain tiff-Appellee.
Tonia Louise Moro, Assistant Federal Public Defender, Federal Public Defender's Office, Medford, OR, for Defendant-Appellant.
Appeal from the United States District Court for the District of Oregon, Owen M. Panner, District Judge, Presiding. D.C. No. 1:08-CR-30004-OMP.
Before: B. FLETCHER, LEAVY, and RYMER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Victor Angel Sanchez-Calle appeals from the 27-month sentence imposed following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Sanchez-Calle contends the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by enhancing his sentence beyond the two-year statutory maximum because the temporal relationship between his prior removal(s) and his prior felony conviction was not alleged in the indictment, admitted by him, or proved beyond a reasonable doubt. Because the indictment alleged at least one date of removal which Sanchez-Calle admitted at the Rule 11 hearing, the district court's determination that the removal took place subsequent to a prior felony conviction did not violate Apprendi. See United States v. Mendoza-Zaragoza, 567 F.3d 431, 434 (9th Cir. 2009); see also United States v. Beltran-Munguia, 489 F.3d 1042, 1053 (9th Cir. 2007).
Sanchez-Calle also contends that we should apply the the doctrine of constitutional avoidance to limit the holding of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). This contention is foreclosed by United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc).