                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 02 2010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. 09-50268

               Plaintiff - Appellee,             D.C. No. 3:09-CR-00172-MJL

  v.
                                                 MEMORANDUM *
RAMIRO ALVARADO-FLORES,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    M. James Lorenz, District Judge, Presiding

                              Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Ramiro Alvarado-Flores appeals from the 75-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).
      Alvarado-Flores contends that the district court erred by determining that his

prior conviction for assault with a deadly weapon, in violation of California Penal

Code § 245(a)(1), constituted a crime of violence under U.S.S.G. § 2L1.2, because

section 245(a)(1) does not contain the requisite use of force and is a general intent

crime. These contentions are foreclosed. See United States v. Grajeda, 581 F.3d

1186, 1191-97 (9th Cir. 2009).

      Alvarado-Flores also contends that the district court erred by imposing a

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

violation. He argues that the Supreme Court’s decision in Almendarez-Torres v.

United States, 523 U.S. 224 (1998), has been undermined and that 8 U.S.C.

§ 1326(b) is unconstitutional. These contentions are foreclosed. See United States

v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc); see also United States v.

Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006).

      AFFIRMED.




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