United States v. Garcia-Rubio
United States v. Garcia-Rubio
Opinion of the Court
MEMORANDUM
Juan Carlos Garcia-Rubio appeals from his 70-month sentence imposed following a guilty plea to being an alien found in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Garcia-Rubio contends that the district court erred in imposing a sentence longer than the two-year statutory maximum set forth by 8 U.S.C. § 1326, because the commission of a prior aggravated felony was neither alleged in the indictment nor proved to a jury beyond a reasonable doubt. Garcia-Rubio acknowledges that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), forecloses this contention, but seeks to preserve the issue on direct appeal. Garcia-Rubio’s contention remains foreclosed. See United States v. Wetland, 420 F.3d 1062, 1079 n. 16 (9th Cir. 2005).
Garcia-Rubio further contends that the district court erred in enhancing his sentence based upon a prior conviction for a felony crime of violence. Garcia-Rubio is mistaken. The record reflects that the district court enhanced his sentence based upon a prior alien smuggling offense pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(vii). This Court has rejected the argument that a prior conviction must be admitted, or alleged in the indictment and proved to a jury beyond a reasonable doubt, in order to enhance a defendant’s offense level under the Sentencing Guidelines. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006).
Garcia-Rubio also contends that his sentence is unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because his sentence is disparate as compared to the median sentence imposed on other de
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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.