Escarcega-Arellano

MEMORANDUM **

Defendant Juan Escarcega-Arellano, a citizen of Mexico, appeals from the sentence imposed after he pleaded guilty to illegal reentry after removal, 8 U.S.C. § 1326 (a). On de novo review, United States v. Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir.), cert. denied, 544 U.S. *671 1041 , 125 S.Ct. 2280 , 161 L.Ed.2d 1074 (2005), we reverse and remand for resentencing.

1. Defendant’s argument that recent Supreme Court cases undermine Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), is foreclosed by United States v. Hernandez-Hernandez, 431 F.3d 1212, 1216 (9th Cir.2005). Equally unavailing is Defendant’s contention that, because members of the Supreme Court have expressed some doubt about the continued vitality of Almendarez-Torres , we should apply the “doctrine of constitutional avoidance” to his case. Because Almendarez-Torres has not been overruled, it resolves the constitutional question at issue here, leaving nothing to avoid.

2. The district court erred, however, in concluding that Defendant’s prior conviction for aggravated assault qualified as an “aggravated felony” under 1326(b)(2) because, as the government…