Cervantes-Rubio

MEMORANDUM **

Everardo Cervantes-Rubio (“Cervantes”) appeals the sentence imposed following his guilty plea to illegal reentry following removal, in violation of 8 U.S.C. § 1326 . We affirm.

I.

The district judge properly considered Cervantes’s prior convictions in holding that the maximum potential sentence for his § 1326 conviction was twenty years, not two. The fact of a prior conviction used for sentencing purposes in a § 1326 conviction need not be charged or proven beyond a reasonable doubt. Almendarez-Torres v. United States, 523 U.S. 224, 226-27 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998). “[U]nless and until the Supreme Court expressly overrules it, Almendarez-Torres controls [in cases such as this].” United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2001) (emphasis added). The Supreme Court has not done so. See Cunningham, v. California, 549 U.S. 270 , 127 S.Ct. 856, 868 , 166 L.Ed.2d 856 (2007).

*604 II.

United States Sentencing Guidelines § 3El.l(b) does not unconstitutionally leave sentencing decisions to the discretion of the government rather than the court. United States v. Villasenor-Cesar, 114 F.3d 970, 975 (9th Cir.1997). Section 3El.l(b) encourages…