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United States v. Gilbert Diaz

Court of Appeals for the Ninth Circuit · 10-50525 · 2011-07-01 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Gilbert Oliva DIAZ, Defendant-Appellant

Area
other
Panel
William C. Canby, Jr. (author), Raymond C. Fisher, Diarmuid F. O'Scannlain

Analysis

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Opinion

FILED NOT FOR PUBLICATION JUL 01 2011

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50525 Plaintiff - Appellee, D.C. No. 3:10-cr-01460-DMS v. MEMORANDUM * GILBERT OLIVA DIAZ, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted June 15, 2011 ** Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

Gilbert Oliva Diaz appeals from the 77-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326, and fraud and misuse of an entry document, in violation of 18 U.S.C. § 1546(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Diaz first contends that in light of subsequent Supreme Court decisions, Almendarez-Torres v. United States, 523 U.S. 224 (1998), has been overruled and that 8 U.S.C. § 1326(b) is unconstitutional. As Diaz concedes, these contentions are foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.

2006); United States v. Rodriguez-Lara, 421 F.3d 932, 949-50 (9th Cir. 2005).

Diaz also contends that the sentence is substantively unreasonable in light of his mitigating personal circumstances and the age and nature of the prior conviction that was the basis for a 16-level enhancement. The sentence imposed is substantively reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Orozco-Acosta, 607 F.3d 1156, 1167 (9th Cir. 2010).

AFFIRMED.

2 10-50525

Cites, in this corpus