United States v. Cruz-Cruz

MEMORANDUM ** Juan Cruz-Cruz appeals from the 46-month sentence imposed following a guilty-plea conviction for unlawful reentry by a deported alien, in violation of 8 U.S.C. § 1326 (a). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Cruz-Cruz contends that his 46-month sentence unreasonable because the district court refused to reduce his sentence to account for the “unwarranted” sentencing disparities caused by the lack of fast-track systems in some districts. This contention is foreclosed by United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir.2006) (concluding that “the disparity between Appellants’ sentences and the sentences imposed on similarly situated defendants who are not prosecuted in fast-track districts is not unwarranted”). Cruzr-Cruz also contends that the doctrine of constitutional avoidance requires that his sentence not exceed two years, the statutory maximum under 8 U.S.C. § 1326 (a), because he did not admit his prior conviction and it was not proven to a jury beyond a reasonable doubt. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998). See also United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005) (noting that Almendarez-Torres is binding precedent unless and until 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.