Aguilar-Herrera

MEMORANDUM **

Diego Aguilar-Herrera 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 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Aguilar-Herrera contends that the district court erred in making an upward adjustment under U.S.S.G. § 2L1.2(b)(l)(A) and in sentencing him pursuant to 8 U.S.C. § 1326 (b)(2) to more than the two-year statutory maximum set forth in § 1326(a) when, the indictment did not allege, he did not admit, and a jury did not find any prior conviction. He argues that the doctrine of constitutional avoidance requires that Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), be limited to the holding that a prior conviction that increases the maximum penalty need not be alleged in the indictment when the pri- or conviction, unlike here, is admitted as part of a guilty plea. He also contends that intervening Supreme Court decisions have overruled Almendarez-Torres and this court’s decisions interpreting Almendarez-Torres to allow sentence increases upon a judicial finding of the fact of a prior conviction. These…