                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 18 2010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. 09-50032

              Plaintiff - Appellee,              D.C. No. 3:08-CR-00443-WQH-1

  v.
                                                 MEMORANDUM *
ALBERTO JACOBO LARA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                          Submitted September 2, 2009 **
                            San Francisco, California

Before: HUG, SKOPIL and BEEZER, Circuit Judges.

       Alberto Jacobo Lara appeals his conviction under 8 U.S.C. § 1326 for

unlawful reentry after removal and his 57-month sentence imposed under 8 U.S.C.

§ 1326(b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Lara challenges his conviction, arguing the underlying removal order was

invalid because he was not informed at the time of the possibility of a discretionary

waiver of removal under 8 U.S.C. § 1182(h). We reject that argument. Lara failed

to demonstrate prejudice regardless of whether the immigration judge incorrectly

failed to inform Lara of the right to seek a § 1182(h) waiver. See United States v.

Arce-Hernandez, 163 F.3d 559, 563–64 (9th Cir. 1998) (noting defendant must

show prejudice by “tender[ing] a plausible case that he is eligible for a waiver”).

Lara failed to demonstrate prejudice because he made no plausible showing that his

U.S. citizen family would suffer extreme hardship as required for a waiver. See 8

U.S.C. § 1182(h) (requiring “extreme hardship to the United States citizen or

lawfully resident spouse, parent, son, or daughter of [the] alien”); Arce-Hernandez,

163 F.3d at 564 (“[A § 1182(h)] waiver will be granted only when there is ‘great

actual or prospective injury’ or ‘extreme impact’ on the citizen family member,

beyond the ‘common results of deportation.’”).

      Lara only made the bare allegation in his declaration that “with respect to

my immigration case, I am and have been married to my wife, Pamela Lara, for 20

years, since 1988.” This fails completely to demonstrate plausible extreme

hardship under our precedent. See id. (holding that alien failed to show extreme

hardship even though his U.S. citizen wife suffered from poor health). Unlike


                                          2
United States v. Arrieta, 224 F.3d 1076 (9th Cir. 2000), where “the defendant had

thoroughly documented the many ways in which his support and presence in the

United States were valuable to various family members in non-economic terms,”

United States v. Muro-Inclan, 249 F.3d 1180, 1185–86 (9th Cir. 2001) (discussing

Arrieta), Lara did not point to any hardship whatsoever in his declaration. His

collateral attack on his underlying deportation therefore fails.1

      Lara also challenges his sentence imposed under § 1326(b)(2) because the

indictment failed to allege his prior aggravated felony and the government failed to

prove its existence beyond a reasonable doubt. The Supreme Court has held,

however, that Congress intended § 1326(b)(2) to be a sentencing factor to be

determined by the judge rather than a separate crime to be alleged and proved to a

jury. Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998). The

Court also rejected the defendant’s contention that such an interpretation of

§ 1326(b)(2) violates the Constitution reasoning that the Constitution does not

require recidivism to be treated as an element of the offense. Id. at 247.


      1
        Lara also states that the immigration judge failed to inform him of the right
to adjust his status under 8 U.S.C. § 1255(a). However, this argument does not
make sense as Lara had already adjusted his status to a lawful permanent resident
under § 1255(a) in 1990. Lara also argues that his Sixth Amendment right to
counsel was violated due to ineffective assistance of counsel. This argument is
also foreclosed because, as discussed, Lara suffered no prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).

                                           3
      Although Almendarez-Torres only addressed the constitutional question

whether recidivism increasing the maximum penalty of a crime must be charged in

the indictment, Jones v. United States, 526 U.S. 227, 248 (1999), the Supreme

Court has strongly implied that Almendarez-Torres also applies to the

constitutional rights of a jury trial and proof beyond a reasonable doubt. See, e.g.,

Blakely v. Washington, 542 U.S. 296, 301 (2004) (“Other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” (emphasis added)). And we have squarely rejected Lara’s constitutional

arguments previously. See United States v. Garcia-Cardenas, 555 F.3d 1049,

1051 (9th Cir. 2009) (“[The defendant] argues that we should limit Almendarez-

Torres to its facts under the doctrine of constitutional doubt; that Almendarez-

Torres has been overruled; and that § 1326(b) is unconstitutional. We have

repeatedly rejected these arguments. . . . Moreover, the Supreme Court continues to

treat Almendarez-Torres as binding precedent.”).

      Lara’s collateral attack fails because he cannot make a plausible showing of

extreme hardship to his U.S. citizen family, and Supreme Court and Ninth Circuit

precedent foreclose the challenge to his sentence.

      AFFIRMED.


                                           4
