United States v. Joel Guerrero-Almodovar

693 F. App'x 546

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 3, 2017
• Docket: 15-50370
• Status: Unpublished

Opinion

MEMORANDUM **

In these consolidated appeals, Joel Ar-noldo Guerrero-Almodovar challenges the 63-month sentence imposed following his guilty-plea conviction for attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326, and the 12-month-and-one-day consecutive sentence imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Guerrero-Almodovar contends that the district court erred in applying a 16-level enhancement under U-S.S.G. § 2L 1.2(b)(1)(A)(ii) (2014) because his pri- or conviction under California Penal Code § 211 is not a crime of violence. This claim is foreclosed. See United States v. Becerril-Lopez, 541 F.3d 881, 893 & n.10 (9th Cir. 2008) (robbery conviction under California Penal Code § 211 is categorically a crime of violence). Contrary to Guerrero-Almodovar’s assertion, Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which concerns the modified categorical approach, does not allow us to disregard Becerril-Lopez. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (three-judge panel is bound by circuit precedent unless that precedent is “clearly irreconcilable” with the reasoning of an intervening higher authority).

Guerrero-Almodovar next contends that the district court violated the Sixth Amendment by increasing his sentence on the basis of a prior felony conviction that was not found by a jury. As he concedes, this claim is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which continues to bind this Court. See United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (order) (“We have repeatedly held ... that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court.”).

Finally, Guerrero-Almodovar argues that the district court denied him his right of allocution before sentencing him on his violation of supervised release. The record belies this claim. During a consolidated hearing, the court invited Guerrero-Almo-dovar to speak before imposing sentence on his new conviction for illegal reentry and his violation of supervised release. Thus, Guerrero-Almodovar was given “an opportunity to make a statement and present any information in mitigation,” Fed. R. Crim. P. 32.1(b)(2)(E), before the sentence was imposed. See United States v. Allen, 157 F.3d 661, 666 (9th Cir. 1998).

AFFIRMED.

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