Medina-Cisneros
United States v. Medina-Cisneros
Opinion
Lead Opinion
MEMORANDUM **
Daniel Medina-Cisneros appeals the sentence imposed following his guilty plea to attempted entry after deportation in violation of 8 U.S.C. § 1326 .
Medina-Cisneros contends that Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), is no longer good law and that the district court violated his constitutional rights in enhancing his sentence under 8 U.S.C. § 1326 (b) based on a non-jury fact finding regarding his prior conviction. This contention is foreclosed by United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005) (holding that we are bound to follow Almendarez-Torres , even though it has been called into question, unless it is explicitly overruled by the Supreme Court). Similarly, there is no merit *542 to Medina-Cisnero’s remaining contention that 8 U.S.C. § 1326 (b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). See United States v. Ochoa-Gaytan, 265 F.3d 837, 845-46 (9th Cir.2001) (holding that Apprendi carved out an exception for prior convictions that specifically preserved the holding of Almendarez Torres).