United States v. Joaquin Paramo-Maciel , 396 F. App'x 353 ( 2010 )

FILED
NOT FOR PUBLICATION SEP 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50550
Plaintiff - Appellee, D.C. No. 3:08-cr-03170-BEN-1
v.
MEMORANDUM *
JOAQUIN PARAMO-MACIEL,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN and N.R. SMITH, Circuit Judges.
Joaquin Paramo-Maciel appeals the sentence imposed following his guilty
plea to attempted entry after deportation in violation of 8 U.S.C. § 1326.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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 (1998), has
been effectively overruled by Nijhawan v. Holder, 129 S. Ct. 2294 (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.