United States v. Fernando Salazar-Gallardo

Court of Appeals for the Ninth Circuit · 09-50077 · 2010-01-11 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Fernando SALAZAR-GALLARDO, Defendant-Appellant

Area: other
Panel: Alfred T. Goodwin (author), William T. Wallace, Raymond C. Fisher

Analysis

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Opinion

FILED NOT FOR PUBLICATION JAN 11 2010

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. 09-50077 Plaintiff - Appellee, D.C. No. 3:08-CR-02709-LAB-1 v. MEMORANDUM * FERNANDO SALAZAR-GALLARDO, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding ** Submitted December 15, 2009 Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.

* 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).

jlf/Inventory Fernando Salazar-Gallardo appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326.

Salazar-Gallardo alleges that Almendarez-Torres v. United States, 523 U.S.

224, 227 (1998), was effectively overruled or limited by the doctrine of avoidance of constitutional doubt, and 8 U.S.C. § 1326(b) is unconstitutional. Salazar- Gallardo concedes that his contentions are foreclosed by our prior decisions, see United States v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007) (en banc) (holding that the date of a prior conviction is part of the "fact" of a prior conviction for Apprendi purposes); United States v. Salazar-Lopez, 506 F.3d 748, 751 n. 3 (9th Cir. 2007);

United States v. Maciel-Vasquez, 458 F.3d 994, 995-96 (9th Cir. 2006) (holding that 8 U.S.C. § 1326(b)(2) is constitutional), and that he raises them to preserve them for potential future review.

AFFIRMED.

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