                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 05 2010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. 09-50460

               Plaintiff - Appellee,             D.C. No. 3:08-cr-03685-WQH

  v.
                                                 MEMORANDUM *
ROBERTO ACEVEDO-RODRIGUEZ,

               Defendant - Appellant.



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

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Roberto Acevedo-Rodriguez appeals from the 70-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.

          *
             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).
      Acevedo-Rodriguez contends that the district court did not comply with

Federal Rule of Criminal Procedure 32(i)(3)(B) because it failed to address his

objection to the presentence report’s finding that the statutory maximum of the

offense was 20 years. Because this objection is directed to the legal conclusion

that a prior conviction can enhance a sentence, not to the fact of the prior

conviction itself, the district court did not err by failing to specifically address the

objection. See United States v. Stoterau, 524 F.3d 988, 1011-12 (9th Cir. 2008).

      Acevedo-Rodriguez next argues that his sentence is unconstitutional because

the district court enhanced his sentence based on a prior conviction that was not

alleged in the indictment, admitted by him, or proven to a jury beyond a reasonable

doubt. As Acevedo-Rodriguez concedes, this argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), and this Court’s

precedent. See United States v. Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir.)

(per curiam) (stating that this Court has repeatedly rejected constitutional

challenges to 8 U.S.C. § 1326(b) and arguments regarding the scope and continued

vitality of Almendarez-Torres), cert. denied, 130 S. Ct. 315 (2009).

      Finally, the record belies Acevedo-Rodriguez’s contention that the district

court did not adequately consider his positive personal history and characteristics

under 18 U.S.C. § 3553(a). The district court considered the defense’s arguments


                                            2                                      09-50460
in the course of determining Acevedo-Rodriguez’s sentence and therefore did not

procedurally err. See Rita v. United States, 551 U.S. 338, 356-59 (2007); United

States v. Carty, 520 F.3d 984, 991-92, 995 (9th Cir. 2008) (en banc). Further,

considering the totality of the circumstances, including the 18 U.S.C. § 3553(a)

sentencing factors, the district court did not abuse its discretion by imposing a

sentence at the bottom of the Sentencing Guidelines range. See Carty, 520 F.3d at

993.

       AFFIRMED.




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