United States v. Oscar Quintana-Quintana

ORDER

Defendant-Appellant Oscar Quintana-Quintana (“Quintana”) was convicted of being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 . The district court sentenced Quintana to seventy months in custody and three years of supervised release, relying in part on a 16-level sentence enhancement under United States Sentencing Guideline (“U.S.S.G.”) § 2L1.2 for Quintana’s prior conviction for assault with a deadly weapon under California Penal Code § 245(a)(1). Quintana appealed his sentence, and we affirmed in an unpublished memorandum disposition. In a petition for rehearing and suggestion for rehearing en banc, Quintana now argues that Blakely v. Washington, — U.S. -, 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), compels us to vacate his sentence because the fact of his prior conviction was not proved to a jury beyond a reasonable doubt.

Quintana’s argument is foreclosed by the express terms of Blakely itself. In Blakely , the Supreme Court explicitly preserved its prior holding in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998),…