United States v. Tobon-Vergara

MEMORANDUM ** Hugo Tobon-Vergara appeals the sentence imposed following his guilty plea to being an alien found in the United States after deportation in violation of 8 U.S.C. § 1326. [550] Tobon-Vergara contends that the district court erred in sentencing him pursuant to 8 U.S.C. § 1326(b) to more than the two-year maximum set forth in 8 U.S.C. § 1326(a), when he did not admit and a jury did not find any prior convictions. He further argues that the avoidance-of-constitutional-doubt doctrine requires that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), be limited to the holding that a prior conviction that increases the maximum penalty need not be alleged in the indictment when the prior conviction, unlike here, is admitted as part of a guilty plea. Finally, although conceding that the issue is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000), and United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004), to preserve the issue, Tobon-Vergara also argues that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and subsequent Supreme Court decisions, Almendarez-Torres has been overruled and § 1326(b) is unconstitutional. These contentions are foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006) (rejecting as foreclosed the contention that recent decisions of the Supreme Court limit Almendarez-Torres’s holding to cases where a defendant has admitted his prior convictions during a guilty plea); United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005) (rejecting contention that the government is required to plead prior convictions in the indictment and prove them to a jury unless the defendant admits the prior convictions); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir. 2005) (affirming the continuing validity of Almendarez-Torres and rejecting a constitutional challenge to § 1326(b)); United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005), cert denied, — U.S. -, 126 S.Ct. 1911, 164 L.Ed.2d 667 (2006) (noting that we are bound by the Supreme Court’s holding in Almendarez-Torres that a district court may enhance a sentence on the basis of prior convictions, even if the fact of those convictions was not found by a jury beyond a reasonable doubt). AFFIRMED. Footnotes [**] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.