                                                                             FILED
                           NOT FOR PUBLICATION                               SEP 21 2010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. 09-50550

              Plaintiff - Appellee,              D.C. No. 3:08-cr-03170-BEN-1

  v.
                                                 MEMORANDUM *
JOAQUIN PARAMO-MACIEL,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                          Submitted September 13, 2010 **


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

       Joaquin Paramo-Maciel appeals the sentence imposed following his guilty

plea to attempted entry after 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.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Paramo-Maciel contends that the district court erred when it imposed a

sentence in excess of the two-year statutory maximum under 8 U.S.C. § 1326. He

asserts that Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), has

been effectively overruled by Nijhawan v. Holder, 129 S. Ct. 2294 (2009). As

Paramo-Maciel concedes, Almendarez-Torres has never been expressly overruled

and continues to constitute binding precedent. See, e.g., United States v.

Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir. 2009) (per curiam); United States

v. Martinez-Rodriguez, 472 F.3d 1087, 1093 (9th Cir. 2007).

      AFFIRMED.
