United States v. Garcia-Rubio

MEMORANDUM ** Juan Carlos Garcia-Rubio appeals from his 70-month sentence imposed following a guilty plea to being an alien found in the United States after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Garcia-Rubio contends that the district court erred in imposing a sentence longer than the two-year statutory maximum set forth by 8 U.S.C. § 1326 , because the commission of a prior aggravated felony was neither alleged in the indictment nor proved to a jury beyond a reasonable doubt. Garcia-Rubio acknowledges that Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), forecloses this contention, but seeks to preserve the issue on direct appeal. Garcia-Rubio’s contention remains foreclosed. See United States v. Wetland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005). Garcia-Rubio further contends that the district court erred in enhancing his sentence based upon a prior conviction for a felony crime of violence. Garcia-Rubio is mistaken. The record reflects that the district court enhanced his sentence based upon a prior alien smuggling offense pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(vii). This Court has rejected the argument that a prior conviction must be admitted, or alleged in the indictment and proved to a jury beyond a reasonable doubt, in order to enhance a defendant’s offense level under the Sentencing Guidelines. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006). Garcia-Rubio also contends that his sentence is unreasonable under United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), because his sentence is disparate as compared to the median sentence imposed on other de *568 fendants convicted of illegal reentry, and because the court declined to grant a criminal history departure. The disparity between Garcia-Rubio’s sentence and those of other defendants is not unwarranted in light of Garcia-Rubio’s extensive criminal history and his rejection of an earlier plea offer. See United, States v. Plouffe, 445 F.3d 1126, 1131-32 (9th Cir.2006) (sentencing disparity did not render sentence unreasonable because defendants had different criminal histories). Further, the district court considered Garcia-Rubio’s criminal history at length, and in a reasoned manner. See United States v. Rodriguez-Rodriguez, 441 F.3d 767, 770-71 (9th Cir.2006). We conclude that Garcia-Rubio’s sentence, at the low end of the applicable Guidelines range, was not unreasonable in light of the factors set forth by 18 U.S.C. § 3553 (a). See Rodriguez-Rodriguez, 441 F.3d at 770-71 . 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.