United States v. Roberto Acevedo-Rodriguez , 398 F. App'x 278 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 05 2010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. 09-50460
Plaintiff - Appellee, D.C. No. 3:08-cr-03685-WQH
v.
MEMORANDUM *
ROBERTO ACEVEDO-RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Roberto Acevedo-Rodriguez appeals from the 70-month sentence imposed
following his guilty-plea conviction for being a deported alien found in the United
States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
*
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).
Acevedo-Rodriguez contends that the district court did not comply with
Federal Rule of Criminal Procedure 32(i)(3)(B) because it failed to address his
objection to the presentence report’s finding that the statutory maximum of the
offense was 20 years. Because this objection is directed to the legal conclusion
that a prior conviction can enhance a sentence, not to the fact of the prior
conviction itself, the district court did not err by failing to specifically address the
objection. See United States v. Stoterau, 524 F.3d 988, 1011-12 (9th Cir. 2008).
Acevedo-Rodriguez next argues that his sentence is unconstitutional because
the district court enhanced his sentence based on a prior conviction that was not
alleged in the indictment, admitted by him, or proven to a jury beyond a reasonable
doubt. As Acevedo-Rodriguez concedes, this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), and this Court’s
precedent. See United States v. Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir.)
(per curiam) (stating that this Court has repeatedly rejected constitutional
challenges to 8 U.S.C. § 1326(b) and arguments regarding the scope and continued
vitality of Almendarez-Torres), cert. denied, 130 S. Ct. 315 (2009).
Finally, the record belies Acevedo-Rodriguez’s contention that the district
court did not adequately consider his positive personal history and characteristics
under 18 U.S.C. § 3553(a). The district court considered the defense’s arguments
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in the course of determining Acevedo-Rodriguez’s sentence and therefore did not
procedurally err. See Rita v. United States, 551 U.S. 338, 356-59 (2007); United
States v. Carty, 520 F.3d 984, 991-92, 995 (9th Cir. 2008) (en banc). Further,
considering the totality of the circumstances, including the 18 U.S.C. § 3553(a)
sentencing factors, the district court did not abuse its discretion by imposing a
sentence at the bottom of the Sentencing Guidelines range. See Carty, 520 F.3d at
993.
AFFIRMED.
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