Garcia-Rubio

MEMORANDUM **

Juan Carlos Garcia-Rubio appeals from his 70-month sentence imposed following a guilty plea to being an alien found in the United States after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Garcia-Rubio contends that the district court erred in imposing a sentence longer than the two-year statutory maximum set forth by 8 U.S.C. § 1326 , because the commission of a prior aggravated felony was neither alleged in the indictment nor proved to a jury beyond a reasonable doubt. Garcia-Rubio acknowledges that Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), forecloses this contention, but seeks to preserve the issue on direct appeal. Garcia-Rubio’s contention remains foreclosed. See United States v. Wetland, 420 F.3d 1062 , 1079 n. 16 (9th Cir.2005).

Garcia-Rubio further contends that the district court erred in enhancing his sentence based upon a prior conviction for a felony crime of violence. Garcia-Rubio is mistaken. The record reflects that the district court enhanced his sentence based upon a prior alien smuggling offense pursuant to U.S.S.G. §…