Virgen-Ruelas

*590 MEMORANDUM **

Nomar Virgen-Ruelas appeals the 57-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326 (a), enhanced by § 1326(b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a).

Virgen-Ruelas contends that the district court committed Sixth Amendment error by considering the fact of a prior conviction which was neither proved to a jury beyond a reasonable doubt nor admitted by him. This contention is foreclosed by United States v. Hernandez-Hernandez, No. 02-30429 (9th Cir.2005) and United States v. Moreno-Hernandez, 419 F.3d 906 , 914 n. 8 (9th Cir.2005) (“Booker bars the district court from considering only those facts not found by the jury other than the fact of prior conviction”) (citing United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738, 756 , 160 L.Ed.2d 621 (2005)). Virgen-Ruelas acknowledges that his contention is foreclosed by Ninth Circuit precedent, but states in his brief that he seeks to preserve this issue in order to facilitate potential post-conviction litigation.

Because Virgen-Ruelas was sentenced under the then-mandatory Sentencing Guidelines,…