From Casetext: Smarter Legal Research

U.S. v. Solorio-Muniz

United States Court of Appeals, Ninth Circuit
Nov 4, 2008
298 F. App'x 627 (9th Cir. 2008)

Opinion

No. 07-50561.

Submitted October 28, 2008.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed November 4, 2008.

Office of the U.S. Attorney, San Diego, CA, Plaintiff-Appellee.

Shaffy Moeel, Federal Defenders of San Diego, Inc., San Diego, CA, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California; Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-07-00338-BTM.

Before: HAWKINS, RAWLINSON, and M. SMITH, Circuit Judges.



MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.


Salvador Solorio-Muniz appeals from the 57-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Solorio-Muniz 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).

Solorio-Muniz 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.


Summaries of

U.S. v. Solorio-Muniz

United States Court of Appeals, Ninth Circuit
Nov 4, 2008
298 F. App'x 627 (9th Cir. 2008)
Case details for

U.S. v. Solorio-Muniz

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Salvador SOLORIO-MUNIZ…

Court:United States Court of Appeals, Ninth Circuit

Date published: Nov 4, 2008

Citations

298 F. App'x 627 (9th Cir. 2008)