Summary
holding that Nijhawan did not over-rule Almendarez-Torres
Summary of this case from U.S. v. Valdovinos-MendezOpinion
No. 10-50269.
Submitted to a Motions Panel December 6, 2010.
Filed January 27, 2011.
Daniel E. Butcher, Esquire, Assistant U.S. Attorney, Office of The U.S. Attorney, San Diego, CA, for the plaintiff-appellee.
Gary Paul Burcham, Esquire, San Diego, CA, for the defendant-appellant.
Appeal from the United States District Court for the Southern District of California, M. James Lorenz, District Judge, Presiding. D.C. No. 3:09-cr-04334-L.
Before: ALFRED T. GOODWIN, PAMELA ANN RYMER, and SUSAN P. GRABER, Circuit Judges.
ORDER
Jose Antonio Leyva-Martinez appeals from the 70-month sentence imposed following his conviction for attempted re-entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Leyva-Martinez contends that the district court erred when it applied a 16-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), because his prior conviction for inflicting corporal injury on a spouse or co-habitant, in violation of California Penal Code § 273.5, does not qualify as a crime of violence. As Leyva-Martinez concedes however, this contention is foreclosed. See United States v. Laurico-Yeno, 590 F.3d 818, 823 (9th Cir.) (holding that a conviction under California Penal Code § 273.5 is categorically at "crime of violence" under the Sentencing Guidelines because the offense requires the intentional use of physical force against the person of another), cert. denied, ___ U.S. ___, 131 S.Ct. 216, 178 L.Ed.2d 130 (2010).
Leyva-Martinez also contends the district court erred by applying 8 U.S.C. § 1326(b) to enhance his sentence. Specifically, he argues that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which permits enhancement based on the existence of a prior felony, has been overruled by Nijhawan v. Holder, ___ U.S. ___, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), so that his prior felony conviction must be either admitted or proved to a jury beyond a reasonable doubt. We have repeatedly held, however, that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court. See, e.g., United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009), cert. denied, ___ U.S. ___, 131 S.Ct. 583, 178 L.Ed.2d 425 (2010); Butler v. Curry, 528 F.3d 624, 643-44 (9th Cir.) (citing cases), cert. denied ___ U.S. ___, 129 S.Ct. 767, 172 L.Ed.2d 763 (2008). Because Nijhawan does not even mention Almendarez-Torres, we cannot conclude that Almendarez-Torres has been expressly overruled and, accordingly, we reject Leyva-Martinez's contention to the contrary and grant appellee's motion for summary affirmance.