United States v. Garcia-Andrade

MEMORANDUM ** Jorge Garcia-Andrade appeals from the 36-month sentence imposed following a guilty-plea conviction for being an illegal alien found in the United States after deportation, in violation of 8 U.S.C. § 1326 (a), as enhanced by (b)(2). We have *625 jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm the conviction and sentence and remand to correct the judgment. Garcia-Andrade contends that his 36-month sentence is unreasonable because the district court refused to further reduce his sentence to account for the “unwarranted” sentencing disparities between Garcia-Andrade and similarly situated defendants who received lesser sentences under fast-track plea agreements. We disagree. Even assuming the district court failed to consider an unwarranted sentencing disparity, the 36-month sentence is reasonable because the district court properly calculated the advisory Guideline range, considered the other 18 U.S.C. § 3553 factors and imposed a sentence below the advisory Guideline range. See United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir.2006) (concluding that unwarranted disparity alone would not render a sentence unreasonable where the sentence was imposed within the Guideline range after considering the Guidelines and other § 3353(a) factors). Garcia-Andrade also contends that 8 U.S.C. § 1326 is unconstitutional in light of recent Supreme Court case law that undermines continuing validity of Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998). This contention foreclosed by United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006). In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand the case to the district court with instructions that it delete from the judgment the reference to § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete reference to § 1326(b)). SENTENCE AFFIRMED; REMANDED TO CORRECT JUDGMENT. 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.