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NOT FOR PUBLICATION JUL 01 2011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