United States v. Fernando Velasquez-bosque

375 F. App'x 787

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2010
• Docket: 09-50066
• Status: Unpublished

Opinion

MEMORANDUM *

Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir.2010) (order), held that carjacking under California Penal Code section 215 is a categorical crime of violence under 18 U.S.C. § 16. Id. at 1058. Nothing in Johnson v. United States, — U.S. -, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), is irreconcilable with Nieves-Medrano, and therefore this court has no authority to disregard Nieves-Medrano. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en bane). Velasquez-Bosque’s challenge to his conviction under 8 U.S.C. § 1326(b)(2) fails.

As the government concedes, the district court erred in admitting the Wilson Declaration at trial, because such admission was in violation of the Confrontation Clause. See Melendez-Diaz v. Massachusetts, — U.S. -, -, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009). However, because the declaration was cumulative of Agent Johnston’s testimony, that testimony was tested through extensive cross-examination, and there was no evidence to contradict the element for which the declaration was offered, we hold that the error was harmless beyond a reasonable doubt. See United States v. Larson, 495 F.3d 1094, 1107-1108 (9th Cir.2007) (en banc). Even though Agent Johnston’s testimony did not precisely track the language of 8 U.S.C. § 1326, it was sufficient to constitute evidence of the Attorney General’s lack of consent to the “alien’s reapplying for admission.” See United States v. Cenantes-Flores, 421 F.3d 825, 834 (9th Cir.2005) (per curiam).

Last, Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), forecloses Velasquez-Bosque’s challenge to the constitutionality of § 1326(b), including the claim that Nijhawan v. Holder, — U.S. -, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), “softened” Almendarez-Torres’s holding. 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 cu-riam); United States v. Martinez-Rodriguez, 472 F.3d 1087, 1093 (9th Cir.2007). 1

AFFIRMED.

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

1 . We address the government's cross-appeal in a separate opinion filed concurrently with this memorandum disposition.