                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 02 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 10-50144

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00018-CAS-1

  v.
                                                 MEMORANDUM*
DAVID JAVIER MARTINEZ-REYES,
AKA Javier Martinez, AKA Javier David
Martinez, AKA David Javier Reyes,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                      Argued and Submitted February 8, 2011
                               Pasadena, California

Before: REINHARDT, RAWLINSON, and N.R. SMITH, Circuit Judges.

       Appellant David Martinez-Reyes (Martinez-Reyes) appeals his sentence of

fifty-five months’ imprisonment, following his guilty plea to being an illegal alien

found in the United States following deportation in violation of 8 U.S.C. § 1326.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      There was no procedural error because the district court properly calculated

the Guideline range, treated the Guidelines as advisory rather than mandatory,

applied the 18 U.S.C. § 3553(a) factors, and adequately explained its reasons for

selecting the sentence imposed. See United States v. Carty, 520 F.3d 984, 993 (9th

Cir. 2008) (en banc). The district court’s skepticism regarding the conclusion of

the immigration expert did not constitute procedural error because the sentence

was not based on any clearly-erroneous factual finding regarding that issue.

See id.

      The sentence imposed was not substantively unreasonable under the totality

of the circumstances. See id. Martinez-Reyes’ argument regarding the disparity

between his sentence and sentences typically imposed upon similarly-situated

defendants who accept fast-track plea agreements is not persuasive. See United

States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir. 2009) (holding that

sentencing disparities created by Congressionally-approved fast-track plea

bargaining programs are not unwarranted).1

      1
       Martinez-Reyes also contended at oral argument that the district court’s
imposition of a sentence greater than the average fast-track sentence punished him
for exercising his constitutional right to reject a plea agreement. This contention
lacks merit. See Prosecutorial Remedies and Tools Against the Exploitation of
Children Today Act of 2003 (PROTECT Act), section 401(m)(2)(B), P.L. 108-21,
117 Stat. 650, 675 (2003) (directing the United States Sentencing Commission to
                                                                         (continued...)

                                          2
      Martinez-Reyes concedes that binding precedent forecloses his remaining

arguments. Assault with a deadly weapon or force likely to produce great bodily

injury, in violation of California Penal Code § 245(a)(1), is categorically a crime of

violence under U.S.S.G § 2L1.2(b)(1)(A)(ii). See United States v. Grajeda, 581

F.3d 1186, 1197 (9th Cir. 2009). The use of a defendant’s prior conviction to

increase a sentence, pursuant to 8 U.S.C. § 1326(b)(2), need not be alleged in the

indictment nor proved to a jury beyond a reasonable doubt. See Almendarez-

Torres v. United States, 523 U.S. 224, 226-27 (1998); see also Grajeda, 581 F.3d

at 1197 (holding that Almendarez-Torres remains good law).

      AFFIRMED.




      1
       (...continued)
promulgate “a policy statement authorizing a downward departure of not more than
4 levels if the Government files a motion for such departure pursuant to an early
disposition program . . .”).


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