UNITED STATES of America, Plaintiff-Appellee, v. Joaquin PARAMO-MACIEL, Defendant-Appellant, 396 F. App'x 353

MEMORANDUM Joaquin Paramo-Maciel appeals the sentence imposed following his guilty plea to attempted entry after deportation in violation of 8 U.S.C. § 1326. Paramo-Maciel contends that the district court erred when it imposed a sentence in excess of the two-year statutory maximum under 8 U.S.C. § 1326. He asserts that Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has been effectively overruled by Nijhawan v. Holder, - U.S. -, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009).

As Paramo-Maciel concedes, Almendarez-Torres has never been expressly overruled and continues to constitute binding precedent. See, e.g., United States v. Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir.2009) (per curiam); United States v. Martinez-Rodriguez, 472 F.3d 1087, 1093 (9th Cir.2007). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.