Opinion
No. 14-50244
03-17-2015
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NICANDRO CASTANEDA-GUARDIOLA, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 3:14-cr-00928-LAB MEMORANDUM Appeal from the United States District Court for the Southern District of California
Larry A. Burns, District Judge, Presiding
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Nicandro Castaneda-Guardiola appeals from the district court's judgment and challenges the 37-month sentence imposed following his bench-trial conviction for attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Castaneda-Guardiola contends that his sentence should not have exceed two years because the fact of the prior conviction that subjected him to enhanced penalties under section 1326(b) was neither alleged in the indictment nor proven beyond a reasonable doubt. The Supreme Court rejected this argument in Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998). Castaneda-Guardiola's contention that Almendarez-Torres has been overruled is incorrect. See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (declining to revisit holding in Almendarez-Torres).
AFFIRMED.