Opinion
No. 05-50818.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 4, 2008.
U.S. Attorney, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Gerard J. Wasson, Esq., Grimes Warwick, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California; Larry A. Burns, District Judge, Presiding. D.C. No. CR-05-00718-LAB.
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.
Marco Antonio Siriano-Ortiz appeals from the 40-month sentence imposed following his guilty-plea 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.
Siriano-Ortiz contends that the district court erred by enhancing his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because his prior conviction for a lewd or lascivious act involving a child under the age of 14 years, in violation of California Penal Code § 288(a), is not categorically a crime of violence. This contention fails. See United States v. Medina-Maella, 351 F.3d 944, 947 (9th Cir. 2003); United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999).
Siriano-Ortiz also contends that the statutory maximum under § 1326 is two years of imprisonment and one year of supervised release because: 1) Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), does not govern under the doctrine of constitutional avoidance; 2) Almendarez-Torres has been overruled; and 3) 8 U.S.C. § 1326(b) is unconstitutional. These contentions fail. See United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir. 2006).
AFFIRMED.