United States v. Quintero , 68 F. App'x 52 ( 2003 )

MEMORANDUM ^**

Carlos Valenzuela Quintero appeals his 56-month sentence 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.

Quintero contends that the district court failed to rule on one of his suggested grounds for downward departure: over-representation of criminal history. This contention is unsupported by the record.

The district court, after entertaining extensive argument about Quintero’s two proposed grounds for departure, found the applicable guideline range to be appropriate and imposed a mid-range sentence. The record shows no confusion on anyone’s part about whether Quintero’s departure requests had been denied. See United States v. Rigby, 876 F.2d 392, 394 (9th Cir.1989) (rejecting asserted need for more express findings at sentencing, where defendant had a “full opportunity to request a more definitive ruling and did not do so”). We cannot review the merits of this unambiguous, discretionary denial of a downward departure. See United States v. Webster, 108 F.3d 1156, 1158 & n. 6 (9th Cir.1997) (concluding that district court had exercised its discretion when it denied a departure with the statement, “looking at your record, you’ve been kind of a problem all along, and it’s time to put a halt to it”).

Quintero also seeks to preserve the claim that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). As he acknowledges, this issue is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000).

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 Ninth Circuit Rule 36-3.