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NOT FOR PUBLICATION JAN 11 2010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.
jlf/Inventory 2 09-50077