UNITED STATES of America, Plaintiff-Appellee, v. Antonio CERVANTES-RODRIGUEZ, Defendant-Appellant, 177 F. App'x 632

MEMORANDUM Antonio Cervantes-Rodriguez appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Cervantes-Rodriguez contends that the holding of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is severely limited and not valid as applied to his situation, 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 conviction. 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 Cervantes-Rodriguez’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.