United States v. Perdan-Pastrada

MEMORANDUM ** Issac Perdan-Pastrada appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. The district court did not err in applying an enhancement pursuant to 8 U.S.C. § 1326 (b)(2) based on Perdan-Pastrada’s prior felony drug trafficking conviction. The fact of a prior conviction does not need to be admitted by the defendant or proven to a jury beyond a reasonable doubt for purposes of sentencing. See United States v. Booker, 543 U.S. 220, 244 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005); United States v. Weiland, 420 F.3d 1062 , 1080 n. 16 (9th Cir.2005) (noting the continuing vitality of Almendarez-Torres v. United States, 523 U.S. 224, 247 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998)). Perdan-Pastrada’s contention that due process prohibited retroactive application of the remedial portion of United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), is foreclosed by United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir.2005). Similarly, Perdan-Pastrada’s contention that application of Booker to the Sentencing Guidelines violated the ex post facto clause is foreclosed. See id. at 924. 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 9 th Cir. R. 36-3.