United States v. Medina-Hernandez

MEMORANDUM ^**

Juan de Dios Medina-Hernandez appeals from the 77-month sentence imposed on resentencing following his guilty-plea conviction 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 we affirm.

Medina-Hernandez contends that, at re-sentencing, the district court treated the Guidelines range as the presumptive sentence and failed to consider the factors set forth in 18 U.S.C. § 3558(a). We conclude that the district court did not commit procedural error and that the sentence imposed is substantively reasonable. See Gall v. United States, — U.S.-, 128 S.Ct. 586, 598-602, 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 994-95 (9th Cir.2008) (en banc).

Medina-Hernandez also contends that the district court erred under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by enhancing his sentence beyond two years based on facts not alleged in the indictment, admitted, or proven to a jury beyond a reasonable doubt. We conclude that any Apprendi error was harmless. See United States v. Salazar-Lopez, 506 F.3d 748, 751-56 (9th Cir.2007). Medina-Hernandez’s contentions regarding the continuing viability of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), are foreclosed. See United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006).

AFFIRMED.

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