Opinion
No. 06-30173.
Submitted April 15, 2008 Seattle, Washington.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
April 17, 2008.
Appeal from the United States District Court for the Eastern District of Washington William Fremming Nielsen, District Judge, Presiding, D.C. No. CR-05-00176-WFN.
Before: ALARCÓN, RYMER, and BERZON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Luis Gutierrez-Hernandez appeals the sentence imposed following his guilty plea to violating 8 U.S.C. § 1326. We granted Gutierrez-Hernandez's petition for rehearing and then deferred submission pending the court's en banc decision in United States v. Gonzalez, 506 F.3d 940 (9th Cir. 2007). In light of Gonzales, we vacate Guiterrez-Hernandez's sentence and remand for resentencing.
The memorandum filed on November 15, 2006, is withdrawn.
Gonzales held that "a totally suspended sentence for a qualifying misdemeanor, regardless of its length, cannot be counted as a prior sentence." 506 F.3d at 944-45 (emphasis in original). The district court held otherwise, understandably relying on the law of the circuit at the time. As the sentences on Guiterrez-Hernandez's two misdemeanor convictions were entirely suspended, he is entitled to be resentenced without those convictions being counted.
Guiterrez-Hernandez argues that the district court erred in increasing his statutory maximum sentence under 8 U.S.C. § 1326(b)(2); that the court could not constitutionally find that he was removed "subsequent to" a prior conviction because this is a "fact" about his prior conviction; and that Almendarez-Torres is no longer good law. These arguments are foreclosed. See United States v. Castillo-Rivera, 244 F.3d 1020, 1025 (9th Cir. 2001) (rejecting claim that "subsequent to" finding is beyond the scope of the prior conviction exception); United States v. Weiland, 420 F.3d 1062, 1079-80 n. 16 (9th Cir. 2005) (holding that we remain bound to follow Almendarez-Torres unless it is explicitly overruled by the United States Supreme Court).
Finally, Guiterrez-Hernandez's supplemental brief suggests that his sentence was improperly enhanced in light of this court's supervening decision in United States v. Figueroa-Ocampo, 494 F.3d 1211, 1216 (9th Cir. 2007). However, we leave this issue to the district court on remand.
SENTENCE VACATED and REMANDED.