United States of America v. Ramiro Alvarado-Flores

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAMIRO ALVARADO-FLORES,
Defendant - Appellant.
No. 09-50268
D.C. No. 3:09-CR-00172-MJL
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted June 29, 2010**
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Ramiro Alvarado-Flores appeals from the 75-month sentence imposed
following his guilty-plea conviction for being a deported alien found in the United
States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
FILED
AUG 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

09-50268 2
Alvarado-Flores contends that the district court erred by determining that his
prior conviction for assault with a deadly weapon, in violation of California Penal
Code § 245(a)(1), constituted a crime of violence under U.S.S.G. § 2L1.2, because
section 245(a)(1) does not contain the requisite use of force and is a general intent
crime. These contentions are foreclosed. See United States v. Grajeda, 581 F.3d
1186, 1191-97 (9th Cir. 2009).
Alvarado-Flores also contends that the district court erred by imposing a
sentence in excess of the two-year statutory maximum for an 8 U.S.C. § 1326
violation. He argues that the Supreme Court’s decision in Almendarez-Torres v.
United States, 523 U.S. 224 (1998), has been undermined and that 8 U.S.C.
§ 1326(b) is unconstitutional. These contentions are foreclosed. See United States
v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc); see also United States v.
Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006).
AFFIRMED.

-- 2 of 2 --