UNITED STATES of America, Plaintiff-Appellee, v. Antonio NARANJO-MENDOZA, Defendant-Appellant, 163 F. App'x 516

MEMORANDUM Antonio Naranjo-Mendoza appeals the sentence imposed following his guilty plea to attempted entry after deportation and misuse of entry documents in violation of 8 U.S.C. § 1326 and 18 U.S.C. § 1546. Naranjo-Mendoza contends that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is no longer good law and that the district court violated his constitutional rights in enhancing his sentence under 8 U.S.C. § 1326(

b) based on a non-jury fact finding regarding his prior commission of an aggravated felony. This contention is foreclosed by United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (holding that we are bound to follow Almendarez-Torres, even though it has been called into question, unless it is explicitly overruled by the Supreme Court). Similarly, there is no merit to Naranjo-Mendoza’s remaining contention that 8 U.S.C. § 1326(

b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Ochoa-Gaytan, 265 F.3d 837, 845-46 (9th Cir.2001) (holding that Apprendi carved out an exception for prior convictions that specifically preserved the holding of Almendarez-Torres). 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.