USA v. Joaquin Paramo-Maciel, No. 09-50550 (9th Cir. 2010)

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FILED SEP 21 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-50550 D.C. No. 3:08-cr-03170-BEN-1 v. MEMORANDUM * JOAQUIN PARAMO-MACIEL, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN and N.R. SMITH, Circuit Judges. Joaquin Paramo-Maciel appeals the sentence imposed following his guilty plea to attempted entry after deportation in violation of 8 U.S.C. § 1326. * 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). Paramo-Maciel contends that the district court erred when it imposed a sentence in excess of the two-year statutory maximum under 8 U.S.C. § 1326. He asserts that Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), has been effectively overruled by Nijhawan v. Holder, 129 S. Ct. 2294 (2009). As Paramo-Maciel concedes, Almendarez-Torres has never been expressly overruled and continues to constitute binding precedent. See, e.g., United States v. Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir. 2009) (per curiam); United States v. Martinez-Rodriguez, 472 F.3d 1087, 1093 (9th Cir. 2007). AFFIRMED.

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