United States v. Barrientos-Maldonado , 168 F. App'x 829 ( 2006 )

MEMORANDUM ^**

Jesus Barrientos-Maldonado appeals the district court’s sentence of fifty-seven months of imprisonment and three years of supervised release for Unlawful Reentry by a Deported, Removed and/or Excluded Alien in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Post-Booker, we review a sentence for “unreasonableness.” United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 765-66, 160 L.Ed.2d 621 (2005). We review the constitutionality of a sentence de novo. United States v. Leon H., 365 F.3d 750, 752 (9th Cir.2004).

Barrientos-Maldonado argues that the district court did not consider the factors set out in 18 U.S.C. § 3553 and that his sentence was unreasonable under Booker. However, at sentencing the district court explicitly stated that it had considered the statutory factors. Barrientos-Maldonado does not contest his prior aggravated felony conviction for Possession with Intent to Manufacture or Deliver Heroin or his related deportation. Under 8 U.S.C. § 1326(b)(2), this prior conviction and deportation authorize a statutory maximum term of imprisonment of twenty years. Given the district court’s recognition of Barrientos-Maldonado’s “very serious” criminal history, his sentence of fifty-seven months, which is at the low end of the advisory Sentencing Guidelines, is not unreasonable.

Barrientos-Maldonado also challenges his sentence on Sixth Amendment grounds, arguing that any fact beyond the mere fact of conviction that justifies increased punishment under 8 U.S.C. § 1326(b)(2) must be proved beyond a reasonable doubt. This claim is precluded by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000). Contrary to Barrientos-Maldonado’s challenges, Almendarez-Torres remains good law. See Pacheco-Zepeda, 234 F.3d at 414 (holding that Almendarez-Torres is “dispositive” in rejecting a Sixth Amendment Apprendi challenge to an 8 U.S.C. § 1326(b)(2) sentence enhancement). Accordingly, we reject BarrientosMaldonado’s Sixth Amendment challenge to the sentence enhancement.

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.