Alcasar-Sanchez

MEMORANDUM **

Javier Alcasar-Sanchez appeals from his sentence of 41 months, the low end of the Guidelines range, imposed after he pled guilty to illegal reentry in violation of 8 U.S.C. § 1326 .

1. Alcasar-Sanchez originally argued that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because the indictment did not allege the date of his prior deportation and his sentence exceeded two years. He urged that the error was structural and required reversal. At oral argument, however, counsel for Alcasar-Sanchez conceded that this argument was foreclosed by recent precedent. See United States v. Salazar-Lopez, 506 F.3d 748, 753-56 (9th Cir.2007) (reviewing such claims for harmless error). Counsel does not argue that the error in this case requires reversal under the harmless error standard.

2. Alcasar-Sanchez argues that the district court erred in refusing to depart downward pursuant to U.S.S.G. § 5K2.13, which authorizes a downward departure for diminished capacity. After United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), the scheme of downward and upward departures from Guidelines sentences has been…