United States v. Madrigal-Espinoza

MEMORANDUM ** Luis Madrigal-Espinoza appeals from the 57-month sentence imposed following *559 his guilty-plea conviction for being an alien in the United States after deportation, in violation of 8 U.S.C. § 1826 , and making a false claim to United States citizenship, in violation of 18 U.S.C. § 911 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate the sentence and remand for resentencing. Madrigal-Espinoza contends that, under the doctrine of constitutional avoidance, § 1326 should be construed to require proof beyond a reasonable doubt that he was deported subsequent to his prior felony conviction. He also contends that the district court engaged in impermissible judicial fact-finding in violation of the Fifth and Sixth Amendments when it found that he was removed subsequent to his prior conviction. These contentions are foreclosed and belied by the record. See United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir.2007) (en banc); see also United States v. Martinez-Rodriguez, 472 F.3d 1087, 1094 (9th Cir.2007). Madrigal-Espinoza’s contention that Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), has been overruled is foreclosed by United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006). Finally, we agree that the district court erred by assessing one criminal history point for Madrigal-Espinoza’s 2003 conviction for driving with a suspended license and his 2005 conviction for false reporting because both offenses resulted in wholly suspended sentences. See United States v. Gonzales, 506 F.3d 940, 943-45 (9th Cir.2007) (en banc). Accordingly, we vacate the sentence and remand for re-sentencing consistent with Gonzales. See id. All pending motions are denied. Sentence VACATED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provid *559 ed by 9th Cir. R. 36-3.