
    UNITED STATES of America, Plaintiff—Appellee, v. Antonio CERVANTES-RODRIGUEZ, Defendant—Appellant.
    No. 05-50496.
    United States Court of Appeals, Ninth Circuit.
    Submitted April 13, 2006.
    
    Decided April 17, 2006.
    Carla Bressler, Esq., Office of the U.S. Attorney, San Diego, CA, for Plaintiff— Appellee.
    
      Michelle A. Villasenor-Grant, Esq., Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant—Appellant.
    Before: SILVERMAN, MCKEOWN and PAEZ, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Antonio Cervantes-Rodriguez appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326.

Cervantes-Rodriguez contends that the holding of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is severely limited and not valid as applied to his situation, and that the district court violated his constitutional rights in enhancing his sentence under 8 U.S.C. § 1326(b) based on a non-jury fact finding regarding his prior conviction. This contention is foreclosed by United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (holding that we are bound to follow Almendarez-Torres, even though it has been called into question, unless it is explicitly overruled by the Supreme Court). Similarly, there is no merit to Cervantes-Rodriguez’s remaining contention that 8 U.S.C. § 1326(b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Ochoa-Gaytan, 265 F.3d 837, 845-46 (9th Cir.2001) (holding that Apprendi carved out an exception for prior convictions that specifically preserved the holding of Almendarez-Torres).

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
     