Opinion
No. 13-50482
07-27-2015
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JULIO CESAR GARCIA-ROSAS, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 3:13-cr-00519-LAB MEMORANDUM Appeal from the United States District Court for the Southern District of California
Larry A. Burns, District Judge, Presiding
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Julio Cesar Garcia-Rosas appeals from the district court's judgment and challenges the 48-month sentence imposed following his jury-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.
Garcia-Rosas contends that the district court erred by using the Ninth Circuit model jury instruction on reasonable doubt. This claim fails because this court has repeatedly upheld the model instruction. See United States v. Alcantara-Castillo, No. 12-50477, 2015 WL 3619853, at *10 n.4 (9th Cir. June 11, 2015).
Garcia-Rosas next contends that the district court violated the Sixth Amendment by increasing his sentence on the basis of a prior felony conviction that was not found by the jury. This argument fails. Contrary to Garcia-Rosas's contention, the Supreme Court's holding in Almendarez-Torres v. United States, 523 U.S. 224 (1988), continues to bind this Court. See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (declining to revisit Almendarez-Torres); United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per curiam) ("We have repeatedly held . . . that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court.").
AFFIRMED.