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U.S. v. Leyva-Martinez

United States Court of Appeals, Ninth Circuit
Jan 27, 2011
632 F.3d 568 (9th Cir. 2011)

Summary

holding that Nijhawan did not over-rule Almendarez-Torres

Summary of this case from U.S. v. Valdovinos-Mendez

Opinion

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.

AFFIRMED.


Summaries of

U.S. v. Leyva-Martinez

United States Court of Appeals, Ninth Circuit
Jan 27, 2011
632 F.3d 568 (9th Cir. 2011)

holding that Nijhawan did not over-rule Almendarez-Torres

Summary of this case from U.S. v. Valdovinos-Mendez

noting that we have "repeatedly held ... that Almendarez–Torres is binding unless it is expressly overruled by the Supreme Court"

Summary of this case from United States v. Job

noting "that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court"

Summary of this case from United States v. Cruz-Mercado
Case details for

U.S. v. Leyva-Martinez

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Jose Antonio…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jan 27, 2011

Citations

632 F.3d 568 (9th Cir. 2011)

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