Altamirano-Ortiz

MEMORANDUM **

Rogelio Altamirano-Ortiz appeals from his 57-month sentence imposed following his guilty plea to being a deported 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 and remand.

Altamirano-Ortiz contends that pursuant to Shepard v. United States, 544 U.S. *570 13 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005), and Dretke v. Haley, 541 U.S. 386 , 124 S.Ct. 1847 , 158 L.Ed.2d 659 (2004), the avoidance of constitutional doubt doctrine requires the court to construe 8 U.S.C. § 1326 and the Sentencing Guidelines such that the fact of a prior conviction must be proven to a jury beyond a reasonable doubt. However, this Court has recently reaffirmed that the fact of a prior conviction may be used to enhance a defendant’s offense level under the Guidelines, and increase a defendant’s statutory maximum sentence under 8 U.S.C. § 1326 (b), even where the prior conviction was not admitted by a defendant. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006). Accordingly, the doctrine of avoidance of constitutional doubt does not require the statute and Guidelines to be…