                                                                           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                              NOT FOR PUBLICATION                           JAN 11 2010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.




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