                                                                           FILED
                           NOT FOR PUBLICATION                              APR 12 2012

                                                                        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. 11-50177

              Plaintiff-Appellee,                D.C. No. 2:10-cr-01002-JHN-1

  v.                                             MEMORANDUM *

FRANCISCO JAVIER HUERTA
MORAN, etc.

              Defendant-Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                  Jacqueline H. Nguyen, District Judge, Presiding

                             Submitted April 9, 2012 **
                               Pasadena, California

Before: FERNANDEZ and SILVERMAN, Circuit Judges, and BLOCK, District
Judge.***



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

        **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).

       ***
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
      Francisco Javier Huerta Moran pleaded guilty to one count of being a

previously deported alien found in the United States without permission, in

violation of 8 U.S.C. § 1326(a), (b)(2). He now appeals his sentence of 57 months’

imprisonment, three years’ supervised release, and a special assessment of $100.

We affirm.

      Moran’s first contention is that the district court failed to adequately explain

the sentence. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en

banc) (“[I]t would be procedural error . . . to fail adequately to explain the sentence

selected.”). Because his objections were not raised before the district court, we

review for plain error. See United States v. Autery, 555 F.3d 864, 869-70 (9th Cir.

2009). No error is apparent here, let alone plain error. The district judge reviewed

Moran’s written submissions and the 18 U.S.C. § 3553(a) factors; she heard further

argument at the sentencing hearing; the sentence was within the Guidelines range;

and her explanation was “sufficient[] to permit meaningful appellate review.”

Carty, 520 F.3d at 992; see also Rita v. United States, 551 U.S. 338, 356 (2007)

(“The sentencing judge should set forth enough to satisfy the appellate court that

he has considered the parties’ arguments and has a reasoned basis for exercising

his own legal decisionmaking authority.”).




                                           2
      Moran next contends that the district court should not have imposed a period

of supervised release. Under the Sentencing Guidelines in place at the time of

sentencing, it was within the court’s discretion to do so. See United States v.

Martin, 278 F.3d 988, 1004 (9th Cir. 2002) (“The district court is required to apply

the version of the guidelines that is in effect at the time of sentencing”). The court

did not abuse its discretion: it considered Moran’s arguments regarding supervised

release and gave sufficient reasons for imposing it.

      Moran’s final contention is that 8 U.S.C. § 1326(b)(2), which provides an

aggravated felony sentencing enhancement, unconstitutionally permits judicial

factfinding. The Supreme Court has said otherwise. See Almendarez-Torres v.

United States, 523 U.S. 224 (1998). Contrary to Moran’s argument,

Almendarez-Torres remains good law and we are bound to follow it. See United

States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009).

      AFFIRMED.




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