United States v. Ciro Herrera-Vasquez

669 F. App'x 937

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 31, 2016
• Docket: 15-10559
• Status: Unpublished

Opinion

MEMORANDUM **

Ciro Herrera-Vasquez appeals from the district court’s judgment and challenges the 30-month sentence imposed following his guilty-plea conviction for 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.

Herrera-Vasquez contends that his sentence is substantively unreasonable because the Guidelines range allegedly overstated the seriousness of his criminal history. The district court did not abuse its discretion in imposing Herrera-Vasquez’s sentence. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The within-Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including Herrera-Vasquez’s criminal and immigration history. See Gall, 552 U.S. at 51, 128 S.Ct. 586.

Herrera-Vasquez next contends the district court erred by enhancing his sentence under 8 U.S.C. § 1326(b). 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, is no longer good law. As Herrera-Vasquez acknowledges, this argument is foreclosed. See Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 2160 n.1, 186 L.Ed.2d 314 (2013) (declining to revisit Almendarez-Torres); United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (“We have repeatedly held .,, that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court.”).

AFFIRMED.

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