United States v. Rodriguez-Morales

MEMORANDUM **

Jose Luis Rodriguez-Morales appeals from the 41-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States in violation of 8 U.S.C. § 1326, and being an alien in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

As an initial matter, the government contends this appeal is barred by the written appeal waiver in Rodriguez-Morales’ plea agreement. This contention is unpersuasive, because the district court advised Rodriguez-Morales at the change of plea hearing that he could appeal his sentence. See United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir. 1995); see also United States v. Lopez-Armenta, 400 F.3d 1173, 1177 (9th Cir. 2005).

Rodriguez-Morales contends his sentence was unreasonable. We conclude the sentence was not unreasonable in light of the factors contained in 18 U.S.C. § 3553(a). See United States v. Booker, 543 U.S. 220, 260-61, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); see also Gall v. United States, — U.S. -, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007).

Rodriguez-Morales also raises a variety of contentions relating to the scope and continuing validity of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). As Rodriguez-Morales concedes in his brief, these contention are foreclosed by existing precedent. See United States v. Salazar-Lopez, 506 F.3d 748, 751 n. 3 (9th Cir. 2007).

AFFIRMED.