Opinion
No. 06-50440.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed February 23, 2007.
U.S. Attorney, USSD — Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Timothy A. Scott, Esq., Law Offices of Timothy A. Scott, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, William Q. Hayes, District Judge, Presiding. D.C. No. CR-04-00488-WQH.
Before: BEEZER, FERNANDEZ, and McKEOWN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Pedro Hernandez-Ventura appeals the district court's order, issued on limited remand pursuant to United States v. Ameline, 409 F.3d 1073, 1084-86 (9th Cir. 2005) (en banc), upholding the original sentence imposed for his conviction for being a convicted alien found in the United States in violation of 8 U.S.C. § 1326.
Hernandez-Ventura's sole contention is that the district court erred in not providing him an opportunity to allocute before the district court made its decision not to resentence him. Hernandez-Ventura's claim is foreclosed by our recent decision in united states v. silva, 472 F.3d 683, 689 (9th Cir. 2007), ("[o]ur review of Ameline, our due process jurisprudence, and Fed.R.Crim.P. 32 reveal no constitutional or statutory reason to require allocution during an Ameline remand.") Accordingly the district court is