                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 14 2009

                                                                        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. 09-10166

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00052-LDG-
                                                 PAL
   v.

 JOSE MANUEL HUERTA-CABRERA,                     MEMORANDUM *

               Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Nevada
                      Lloyd D. George, District Judge, Presiding

                           Submitted November 17, 2009 **

Before: ALARCÓN, TROTT and TASHIMA, Circuit Judges.

        Jose Huerta-Cabrera appeals the sentence imposed following his guilty plea

to being a deported alien found unlawfully in the United States 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 finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

HL/Inventory
       Huerta-Cabrera contends that his sentence violated Apprendi v. New Jersey,

530 U.S. 466 (2000), because it was based on a prior aggravated felony conviction

not charged or admitted. Huerta-Cabrera concedes that his argument is foreclosed,

see e.g., United States v. Salazar-Lopez, 506 F.3d 748, 751 n. 3 (9th Cir.2007);

United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000); and that he raises

it to preserve it for potential future review.

       AFFIRMED.




HL/Inventory
