United States v. Martinez Aviles

MEMORANDUM **

Michael Ivan Martinez Aviles appeals the sentence imposed following his guilty plea to being an illegal alien found in the United States following deportation and conviction.

Aviles contends that 8 U.S.C. § 1326 (b), which increases the maximum sentence for illegal reentry based on facts that do not have to be proved to a jury beyond a reasonable doubt, is unconstitutional. This contention, as Aviles concedes and preserves in the event of a Supreme Court holding to the contrary, is foreclosed. See United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005) (noting that we continue to be bound by the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), that a district court may enhance a sentence on the basis of prior convictions, even if the fact of those convictions was not found by a jury beyond a reasonable doubt).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir.2000), *557 we remand the case to the district court with instructions that it delete the reference in the judgment to 8 U.S.C. § 1326 (b)(2) as an offense statute. See also United States v.…