United States v. Medina-Hernandez

MEMORANDUM ** Juan de Dios Medina-Hernandez appeals from the 77-month sentence imposed on resentencing following his guilty-plea conviction for unlawful reentry by a deported, removed and/or excluded alien, in violation of 8 U.S.C. § 1326 . We have *477 jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Medina-Hernandez contends that, at re-sentencing, the district court treated the Guidelines range as the presumptive sentence and failed to consider the factors set forth in 18 U.S.C. § 3558 (a). We conclude that the district court did not commit procedural error and that the sentence imposed is substantively reasonable. See Gall v. United States, — U.S.-, 128 S.Ct. 586, 598-602 , 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 994-95 (9th Cir.2008) (en banc). Medina-Hernandez also contends that the district court erred under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), by enhancing his sentence beyond two years based on facts not alleged in the indictment, admitted, or proven to a jury beyond a reasonable doubt. We conclude that any Apprendi error was harmless. See United States v. Salazar-Lopez, 506 F.3d 748, 751-56 (9th Cir.2007). Medina-Hernandez’s contentions regarding the continuing viability of Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), are foreclosed. See United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.