United States v. Aguilar-Herrera

MEMORANDUM ** Diego Aguilar-Herrera appeals the sentence imposed following his guilty plea to 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. Aguilar-Herrera contends that the district court erred in making an upward adjustment under U.S.S.G. § 2L1.2(b)(l)(A) and in sentencing him pursuant to 8 U.S.C. § 1326 (b)(2) to more than the two-year statutory maximum set forth in § 1326(a) when, the indictment did not allege, he did not admit, and a jury did not find any prior conviction. He argues that the doctrine of constitutional avoidance 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 pri- or conviction, unlike here, is admitted as part of a guilty plea. He also contends that intervening Supreme Court decisions have overruled Almendarez-Torres and this court’s decisions interpreting Almendarez-Torres to allow sentence increases upon a judicial finding of the fact of a prior conviction. These contentions are foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.