United States v. Agustin Acosta-Magallanes

670 F. App'x 923

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2016
• Docket: 15-10415
• Status: Unpublished

Opinion

MEMORANDUM **

Agustín Acosta-Magallanes challenges the 48-month custodial sentence and Si-year term of supervised release imposed by the district court after his guilty-plea conviction for being found in the United States following deportation, in violation of 8 U.S.C. § 1326, as enhanced by § 1326(b)(2). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Acosta-Magallanes contends that the district court abused its discretion in imposing non-individualized, contradictory supervised release conditions as he likely will not be in the country to follow the supervised release requirements. A court “ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment.” U.S.S.G. § 5D1.1(c). District courts, however, have discretion to impose supervised release in cases where added deterrence is needed. See United States v. Valdavinos-Torres, 704 F.3d 679, 693 (9th Cir. 2012); see also U.S.S.G. § 5D1.1, cmt. n.5. A district court imposing a term of supervised release for a deportable alien must articulate “a specific and partieular-ized explanation that supervised release would provide an added measure of deterrence and protection based on the facts of [the defendant’s] case.” Valdavinos-Torres, 704 F.3d at 693. Here, the district court gave an adequate and reasoned basis for sentencing Acosta-Magallanes to supervised release. After considering his past history, the court found that supervised release would deter Acosta-Magal-lanes from returning to the United States. At sentencing, the district court also said that the terms of supervised release would apply only if Acosta-Magallanes returned to the United States. In our view, the district court acted within its proper discretion by imposing a term of supervised release in the circumstances presented.

Acosta-Magallanes also argues that 8 U.S.C. § 1326(b) is unconstitutional, and as a result, his sentence cannot be more than two years. This court .has repeatedly rejected this argument, and we are bound to follow the United States Supreme Court’s precedent in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), until it is overruled by the Supreme Court. See United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per curiam); United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). We will not engage in anticipatory overruling of a Supreme Court precedent and consider appellant’s argument on this issue as a way to preserve the issue should the Supreme Court change itslaw.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.