Hernandez-Toscano
United States v. Hernandez-Toscano
Opinion
Lead Opinion
MEMORANDUM **
David Hernandez-Toscano appeals from the 77-month sentence imposed after his guilty-plea conviction for one count of illegal entry, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 .
The district court did not err in applying an enhancement pursuant to 8 U.S.C. § 1326 (b)(2) based on Hernandez-Tosca-no’s prior felony drug trafficking conviction. The fact of a prior conviction does not need to be admitted by the defendant or proven to a jury beyond a reasonable doubt for purposes of sentencing. See United States v. Booker, 543 U.S. 220, 244 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005); United States v. Weiland, 420 F.3d 1062 , 1080 n. 16 (9th Cir.2005) (noting the continuing vitality of Almendarez-Torres v. United States, 523 U.S. 224, 247 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998)).
Hernandez-Toscano also contends that the district court failed to consider the sentencing factors enumerated in 18 U.S.C. § 3553 (a). The facts belie Hernandez-Toscano’s contention, as the district court properly addressed his criminal history in considering the need to protect the public and to afford adequate deterrence to further criminal conduct. See 18…