Ventura-Hernandez

MEMORANDUM ** and ORDER

Pedro Ventura-Hernandez appeals from the 115-month sentence imposed following *659 his jury conviction for being a deported alien found in the United States in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 .

Ventura-Hernandez’s contention that the court erred in applying a 16-level enhancement is without merit. See United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005); Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000); see also United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000), cert. denied, 532 U.S. 966 , 121 S.Ct. 1503 , 149 L.Ed.2d 388 (2001). His argument that his sentence was unconstitutional under Apprendi and its progeny, because the fact of his prior conviction was not admitted or proved to a jury beyond a reasonable doubt, is foreclosed by United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir.2005).

Ventura-Hernandez was sentenced under the then-mandatory Sentencing Guidelines, and we cannot reliably determine from the record whether the sentence imposed would have been materially different had the district court known that the…