U.S. v. Gaytan-Sanchez

Full title: UNITED STATES of America, Plaintiff — Appellee, v. Manuel GAYTAN-SANCHEZ…

Court: United States Court of Appeals, Ninth Circuit

Date published: May 27, 2008

279 F. App'x 577 (9th Cir. 2008)

Opinion

Nos. 06-50558, 06-50622.

Submitted May 20, 2008^_.

_ The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed May 27, 2008.

Christopher A. Ott, Esq., Neville S. Hedley, George V. Manahan, Esq., USSD — Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.

Lisa M. Bassis, Esq., Law Offices of Lisa M. Bassis, Beverly Hills, CA, Charles H. Adair, Law Offices of Charles H. Adair, San Diego, CA, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California, William Q. Hayes, District Judge, Presiding. D.C. No. CR-05-01652-WQH.

Appeal from the United States District Court for the Southern District of California, Gordon Thompson, Jr., District Judge, Presiding. D.C. No. CR-02-03060-GT.

Before: PREGERSON, TASHIMA, and GOULD, Circuit Judges.

MEMORANDUM^__

__ This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

In these consolidated cases, Gaytan-Sanchez appeals from his jury-trial conviction and sentence for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326, and from the sentence imposed following the revocation of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Gaytan-Sanchez has waived any contentions regarding his § 1326 conviction and sentence as he failed to address them in his opening brief. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).

Gaytan-Sanchez contends that the supervised release revocation procedures set forth in 18 U.S.C. § 3583(e)(3) violate the holding of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This contention is foreclosed by United States v. Huerta-Pimental, 445 F.3d 1220, 1223-25 (9th Cir. 2006). We reject Gaytan-Sanchez's contention that Huerta-Pimental is no longer good law in light of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). See United States v. Ray, 484 F.3d 1168, 1172 (9th Cir. 2007) (applying Huerta-Pimental post-Cunningham).

AFFIRMED.