United States v. Basulto-Terriquez

MEMORANDUM ** Juan Jose Basulto-Terriquez appeals from the 46-month sentence imposed following his guilty plea to unlawful reentry of a deported alien, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. Basulto-Terriquez 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. This contention is foreclosed by this court’s holding in United States v. Marcial-Santiago, 447 F.3d 715, 717-19 (9th Cir.2006). Basulto-Terriquez next contends that the district court erred by sentencing him to a term of 46 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 (2004). These contentions are foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006) (rejecting after Shepard the contention that a § 1326(b) enhancement cannot be applied where the defendant did not admit the prior conviction during a guilty plea); see also United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005) (holding that we are bound to follow Almendarez-Torres 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.