United States v. Felipe Olvera-Campos

396 F. App'x 406

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 2010
• Docket: 10-50050
• Status: Unpublished

Opinion

MEMORANDUM **

Felipe Olvera-Campos appeals the sentence imposed following his guilty plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326.

Olvera-Campos contends that the district court erred when it imposed a sentence in excess of the two-year statutory maximum under 8 U.S.C. § 1326. He asserts that Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has been effectively overruled by Nijhawan v. Holder, — U.S. -, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). This contention lacks merit. Almendarez-Torres has never been expressly overruled and continues to constitute binding precedent. See, e.g., United States v. Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir.2009) (per curiam ); United States v. Martinez-Rodriguez, 472 F.3d 1087, 1093 (9th Cir.2007).

As Olvera-Campos concedes, his assertion that the district court erred when it applied a 16-level “crime of violence” adjustment under U.S.S.G. § 2L1.2(b)(l)(A)(ii), based on his prior conviction for inflicting corporal injury on a spouse, in violation of California Penal Code § 273.5, is foreclosed. See United States v. Laurico-Yeno, 590 F.3d 818, 823 (9th Cir.2010) (holding that a conviction under California Penal Code § 273.5 is categorically a “crime of violence” under the Guidelines because the offense requires the intentional use of physical force against the person of another).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.