UNITED STATES of America, Plaintiff-Appellee, v. Ismael GUTIERREZ-VALENCIA, Defendant-Appellant, 198 F. App'x 665

MEMORANDUM Ismael Gutierrez-Valencia appeals from the 46-month sentence imposed following his guilty plea to being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Gutierrez-Valencia contends that the district court erred by increasing his sentence pursuant to 8 U.S.C. § 1326(b)(2) based on judge-found facts that he did not admit and a jury did not find beyond a reasonable doubt. He further asserts that Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), still requires facts to be submitted to a jury and proven beyond a reasonable doubt. He also contends that in light of subsequent Supreme Court decisions, Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has been overruled and that § 1326(

b) is unconstitutional. These contentions are foreclosed with respect to prior convictions. See United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005) (rejecting the contention that the government is required to plead prior convictions in the indictment and prove them beyond a reasonable doubt to a jury unless the defendant admits the prior conviction in his guilty plea); see also United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006) (reaffirming the validity of Almendarez-Torres and rejecting a challenge to the constitutionality of § 1326(b)).

Gutierrez-Valencia also contends that following Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the maximum penalty in a mandatory state sentencing guideline system is the applicable maximum state guideline range, and so his prior state conviction does not qualify as a felony under the Guidelines because the maximum state guideline sentence was under 12 months. As Gutierrez-Valencia concedes, this contention is foreclosed by United States v. Murillo, 422 F.3d 1152, 1155 (9th Cir. 2005).

Gutierrez-Valencia further contends that his sentence is unreasonable because of the sentencing disparity between a non-fast-track jurisdiction and a fast-track jurisdiction. This contention is foreclosed by United States v. Marcial-Santiago, 447 F.3d 715, 719 (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.