United States v. Rivera

MEMORANDUM ** Omar Mora Rivera appeals his 41-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326 (a). He contends that evolving Supreme Court jurisprudence has undermined the holding of Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), and that the enhancement of his sentence under 8 U.S.C. § 1326 (b)(2) and U.S.S.G. § 2L1.2(b)(l)(A) on the basis of a fact — a prior arson conviction — not proved beyond a reasonable doubt to a jury is unconstitutional because the sentence exceeds the statutory maximum two years. This contention is foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088 (9th Cir.2006); United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005). 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.