                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            SEP 10 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 13-30129

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00021-JLR-13

  v.
                                                 MEMORANDUM*
GERSON FLETES-RAMOS, AKA Guero,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                          Submitted September 3, 2015**
                              Seattle, Washington

Before: McKEOWN, GOULD, and N.R. SMITH, Circuit Judges.

       Gerson Fletes-Ramos challenges the 56-month sentence imposed following

his 2013 conviction for illegal reentry under 8 U.S.C. § 1326(a). 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).
      Fletes-Ramos first argues that his Sixth Amendment rights were violated

when the judge, rather than a jury, determined facts used to sentence him to a

prison term that exceeded the advisory Guidelines range, which was 41 to 51

months. This argument fails, however, because Fletes-Ramos’s sentence was well

within the 20-year statutory maximum for illegal reentry. The district court judge

was entitled to “exercise discretion—taking into consideration various factors

relating both to offense and offender—in imposing a judgment within the

range prescribed by statute.” Apprendi v. New Jersey, 530 U.S. 466, 481 (2000)

(emphasis in original); see also United States v. Mix, 457 F.3d 906, 914 (9th Cir.

2006) (noting that “the advisory Guidelines remedy . . . ‘gives the sentencing judge

discretion to sentence outside the guideline range’”) (quoting United States v.

Dupas, 419 F.3d 916, 919 (9th Cir. 2005)); United States v. Ray, 484 F.3d 1168,

1171 (9th Cir. 2007).

      Fletes-Ramos next argues that his prior state conviction for heroin delivery

should not have triggered a 12-level Guidelines sentencing enhancement as a

felony punishable by more than one year. Because Fletes-Ramos never raised this

argument during sentencing proceedings, it is subject to plain-error review. United

States v. Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012) (per curiam) (“Ninth Circuit

precedent requires that a specific argument clearly be raised in the district court.”).


                                           2
Application of the sentencing enhancement was not plain error because the Oregon

statute under which Fletes-Ramos was convicted carries a 20-year statutory

maximum and United States v. Murillo has not been abrogated or overruled and

remains binding law in this circuit. 422 F.3d 1152, 1155 (9th Cir. 2005) (holding

that, in determining whether a crime is punishable by more than one year, the

operative term is “the potential maximum sentence defined by the applicable state

criminal statute”).

      AFFIRMED.




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