Sierra-Gaitan

MEMORANDUM **

Luis Enrique Sierra-Gaitan appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326 .

Sierra-Gaitan contends that the holding of Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), is severely limited, 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. See 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 to Sierra-Gaitan’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 ). Sierra-Gaitan concedes that his…