
    UNITED STATES of America, Plaintiff — Appellee, v. Audel De Jesus SANCHEZ-ESPINOZA, Defendant — Appellant.
    No. 05-50923.
    United States Court of Appeals, Ninth Circuit.
    Submitted Aug. 26, 2008.
    
    Filed Sept. 4, 2008.
    James Peter Melendres, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
    Robert L. Swain, Esquire, Swain & Vance, San Diego, CA, for Defendant-Appellant.
    Before: SCHROEDER, KLEINFELD, and IKUTA, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Audel De Jesus Sanchez-Espinoza appeals from the 57-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(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Sanchez-Espinoza contends that the district court impermissibly enhanced his sentence beyond the two-year statutory maximum based upon a prior conviction that was neither admitted by him nor found by a jury beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This contention is foreclosed. See United States v. CovianSandoval, 462 F.3d 1090, 1096-97 (9th Cir. 2006).

Sanchez-Espinoza also contends that the district court erred in failing to adequately consider the 18 U.S.C. § 3553(a) factors and by attaching a presumption of reasonableness to the Guidelines. This contention fails as the record reflects that the district court imposed the within-Guidelines range sentence after properly considering the § 3553(a) factors as well as Sanehez-Espinoza’s request for a downward departure and arguments in mitigation. Furthermore, the district court expressly noted that the Guidelines were not binding. The district court did not procedurally err, and the sentence is reasonable. See Gall v. United States, — U.S. -, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); see also United States v. Carty, 520 F.3d 984, 994-95 (9th Cir. 2008) (en banc).

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