UNITED STATES of America, Plaintiff-Appellee, v. David HERNANDEZ-TOSCANO, Defendant-Appellant, 195 F. App'x 565

MEMORANDUM David Hernandez-Toscano appeals from the 77-month sentence imposed after his guilty-plea conviction for one count of illegal entry, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. The district court did not err in applying an enhancement pursuant to 8 U.S.C. § 1326(b)(2) based on Hernandez-Tosca-no’s prior felony drug trafficking conviction. The fact of a prior conviction does not need to be admitted by the defendant or proven to a jury beyond a reasonable doubt for purposes of sentencing. See United States v.

Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Weiland, 420 F.3d 1062, 1080 n. 16 (9th Cir.2005) (noting the continuing vitality of Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)). Hernandez-Toscano also contends that the district court failed to consider the sentencing factors enumerated in 18 U.S.C. § 3553(a). The facts belie Hernandez-Toscano’s contention, as the district court properly addressed his criminal history in considering the need to protect the public and to afford adequate deterrence to further criminal conduct.

See 18 U.S.C. § 3553(a)(2)(B), (D). The district court was not required to consider potential disparities between Hernandez-Toscano’s sentence and those for defendants sentenced under a fast-track program. See United States v. Marcial-Santiago, 447 F.3d 715, 717-18 (9th Cir.2006). Because the court considered various pertinent factors listed in § 3553(a), the sentence imposed was not unreasonable. See United States v. Plouffe, 436 F.3d 1062, 1063 (9th Cir.2006). 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.