UNITED STATES of America, Appellee, v. Mario LOPEZ-OSIRIO, Defendant-Appellant, 171 F. App'x 880

SUMMARY ORDER Lopez-Osirio raises two Sixth Amendment claims. He first argues that the district court improperly sentenced him on the basis of prior convictions, the existence of which were not proven to a jury beyond a reasonable doubt. Even if Lopez-Osirio had properly preserved this claim, his argument is foreclosed by Almendarez-Torres v. United States, 528 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which remains binding law. See United States v. Estrada, 428 F.3d 387, 391 (2d Cir.2005), cert. denied sub nom. Herredia v. United States, — U.S.-, 126 S.Ct. 1451, 164 L.Ed.2d 148 (2006).

Second, Lopez-Osirio argues that his lawyer provided ineffective assistance of counsel by not presenting the district court with expert psychiatric testimony linking his history of suffering abuse to a current mental condition in support of his argument for a downward departure under United States v. Rivera, 192 F.3d 81, 85 (2d Cir.1999), cert denied sub nom. Mendez v. United States, 528 U.S. 1129, 120 S.Ct. 965, 145 L.Ed.2d 836 (2000).

We need not reach the issue of whether Lopez-Osirio’s lawyer had a duty to consult outside psychological experts because the district court concluded that, even if Lopez-Osirio’s current violent conduct were a direct result of his past abuse, he should still be incapacitated because he poses a current danger to society. Given this sentencing rationale, Lopez-Osirio cannot show any prejudice, as required by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.