United States v. Almader-Salas

MEMORANDUM ** Jorge Alberto Almader-Salas appeals from the sentence imposed following his guilty plea to being found in the United States after illegal reentry, in violation of 8 U.S.C. § 1326 (a). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. Almader-Salas first contends that the district court erred by declining to consider his argument that the disparity between his sentences, and the sentences imposed on similarly-situated defendants who are prosecuted in districts with fast-track programs, is unwarranted and renders his sentences unreasonable. He further contends that this disparity violates his equal protection rights. These contentions are foreclosed by this court’s holding in United States v. Marcial-Santiago, 447 F.3d 715, 717-19 (9th Cir.2006). Almader-Salas next contends that the district court erred by sentencing him to a term of 41 months when he only pled to the elements of 8 U.S.C. § 1326 (a), which carries a maximum sentence of two years. He also contends that Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), is no longer good law in light of the intervening Supreme Court decision Shepard v. United States, 544 U.S. 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005). These contentions are foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006) (rejecting after Shepard the specific contention that a § 1326(b) enhancement cannot be applied where the defendant did not admit the prior conviction during a guilty plea); United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005) (holding that we are bound to follow Almendarez-Torres even though it has been called into question, unless it is explicitly overruled by the Supreme Court). 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 9th Cir. R. 36-3.