USA v. Victor Maldonado-Delgado, No. 09-50599 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 28 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff -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. 09-50599 D.C. No. 3:09-cr-02584-JAH-1 v. MEMORANDUM * VICTOR MALDONADO-DELGADO, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding Submitted August 18, 2010 ** San Francisco, California Before: HUG, SKOPIL and BEEZER, Circuit Judges. Victor Maldonado-Delgado appeals the district court's sentence of 60 months following his guilty plea to charges of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Maldonado contends that, in * 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). imposing his sentence, the district court improperly failed to consider mitigating factors, improperly characterized his prior conviction under Cal. Penal Code § 245(a)(1) as a crime of violence, and improperly imposed a sentence that was above the statutory maximum. We have jurisdiction under 28 U.S.C. §§ 1291, 1294. We affirm. We review a district court s sentencing decisions for abuse of discretion. Gall v. United States, 552 U.S. 38, 50 51 (2007). We review sentence enhancements de novo. United States v. Valle-Montalbo, 474 F.3d 1197, 1199 (9th Cir. 2007). And we review the constitutionality of a district court s sentence de novo. See United States v. Smith, 282 F.3d 758, 771 (9th Cir. 2002). The facts of this case are known to the parties. We do not repeat them. I A district court is not required to discuss each mitigating factor under 18 U.S.C. § 3553(a). United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Instead, all that is required is that the court state the reasons for the sentence imposed so that we may conduct a meaningful review. See id. at 516 17. Here, our review of the record reveals that the district court considered the relevant mitigating factors and explained its sentence to the extent necessary 2 for our review. No more is required. See Rita v. United States, 551 U.S. 338, 357 58 (2007). II A conviction of assault with a deadly weapon under Cal. Penal Code § 245(a)(1) is a crime of violence within the meaning of U.S.S.G. § 2L1.2. United States v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009). The district court therefore properly characterized Maldonado s prior conviction as a crime of violence, which triggered the sentencing enhancements of U.S.S.G. § 2L1.2. III Maldonado contends the district court erred by applying 8 U.S.C. § 1326(b) to enhance his sentence. Specifically, he argues that Almendarez-Torres v. United States, 523 U.S. 224 (1998), which permits enhancement based on the existence of a prior felony, has been overruled by Nijhawan v. Holder, 129 S. Ct. 2294 (2009), so that his prior felony must be either admitted or proved to a jury beyond a reasonable doubt. We have repeatedly held, however, that Almendarez-Torres is binding unless expressly overruled by the Supreme Court. See, e.g., United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009); Butler v. Curry, 528 F.3d 624, 643-44 (9th Cir. 2008) (citing cases). Because Nijhawan does not even mention 3 Almendarez-Torres, we cannot conclude that Almendarez-Torres has been expressly overruled, and accordingly, we reject Maldonado s argument. AFFIRMED. 4

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