United States v. Reyes-Melgoza , 245 F. App'x 667 ( 2007 )

MEMORANDUM ^**

Antonio Reyes-Melgoza appeals from the 41-month sentence imposed following his guilty-plea conviction for unlawful reentry of a deported alien, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Reyes-Melgoza contends that the district court erred by increasing his sentence pursuant to 8 U.S.C. § 1326(b)(2) based on a prior conviction that he did not admit, and a jury did not find beyond a reasonable doubt. As he concedes, this contention is foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006).

Reyes-Melgoza further contends that pursuant to Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004), the avoidance of constitutional doubt doctrine requires the Court to construe 8 U.S.C. § 1326 such that a two-year statutory maximum applies to his offense, and to reject the holding of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). This Court, however, has recently reaffirmed that the fact of a prior conviction need not be proven to a jury or admitted in order to increase a defendant’s statutory maximum sentence under § 1326(b), and that Almendarez-Torres remains binding and controlling precedent. See Beng-Salazar, 452 F.3d at 1091; see also United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir.2007) (en banc). Accordingly, the doctrine of avoidance of constitutional doubt does not require the statute and Guidelines to be construed otherwise.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.