United States v. Meza-Estrada

MEMORANDUM ** Federal prisoner Hilario Meza-Estrada appeals from his conviction and 70-month sentence imposed following a guilty plea to being an illegal alien found in the United States after having been deported, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Meza-Estrada contends that the district court erred by increasing his sentence pursuant to 8 U.S.C. § 1326 (b)(2) based on *545 judge-found facts, when he did not admit and a jury did not find beyond a reasonable doubt the facts of his prior conviction and/or its temporal relationship to his deportation. He further contends that the constitutional avoidance doctrine requires this court to interpret 8 U.S.C. § 1826 (a) in a manner that would limit his sentence to two years imprisonment. He also contends that Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), does not apply here because it was based on a Fifth Amendment and not a Sixth Amendment challenge. Finally, Meza-Estrada contends that in light of subsequent Supreme Court decisions, and changes to 8 U.S.C. § 1326 (b)(2), Almendarez-Torres is not binding precedent. These contentions are foreclosed. See United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005) (rejecting the contention that the government is required to plead prior convictions in the indictment and prove them beyond a reasonable doubt to a jury unless defendant admits the prior conviction in his guilty plea); United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005) (noting that we continue to be bound by the Supreme Court’s holding in Almendarez-Torres); United States v. Castillo-Rivera, 244 F.3d 1020 , 102A-25 (9th Cir.2001) (rejecting the contention that the fact of the temporal relationship between the deportation and the prior conviction under 8 U.S.C. § 1326 (b)(2) is beyond the scope of the Supreme Court’s recidivism exception); United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2001) (stating that Almendarez-Torres is “dispositive” in rejecting Sixth Amendment claim). Meza-Estrada next contends that the district court erred in denying his motion to withdraw his guilty plea. We disagree. The fact that Meza-Estrada received a higher sentence than he had anticipated is not a “fair and just reason” for withdrawal. United States v. Reyna-Tapia, 328 F.3d 1114, 1117 (9th Cir.2003) (en banc). Accordingly, Meza-Estrada has not met his burden of showing that the district court abused its discretion in denying his motion to withdraw his plea. See id. 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.