United States v. Geyen Avila-Correa

619 F. App'x 653

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 19, 2015
• Docket: 14-50436
• Status: Unpublished

Opinion

MEMORANDUM **

Geyen Avila-Correa appeals from the district court’s judgment and challenges the 63-month sentence imposed following his guilty-plea conviction for being a removed alien found in the United States, in violation of 8 U.S.C. § 1326. We dismiss.

Avila-Correa contends that his sentence is illegal because the fact of his prior felony conviction, which increased the statutory maximum sentence, was not charged in the information. The government argues that this appeal should be dismissed based on an appeal waiver contained in the parties’ plea agreement. We review de novo whether to enforce an appeal waiver. See United States v. Watson, 582 F.3d 974, 981 (9th Cir.2009). Contrary to Avila-Correa’s contention, the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), remains binding. 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) (per curiam) (“We have repeatedly held ... that Al-mendarez-Torres is binding unless it is expressly overruled by the Supreme Court.”). Accordingly, Avila-Correa’s sentence is not illegal, and we dismiss this appeal in light of the valid appeal waiver. See Watson, 582 F.3d at 988.

DISMISSED.

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