United States v. Jose Martinez-Aguayo

671 F. App'x 587

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2016
• Docket: 15-10491
• Status: Unpublished

Opinion

MEMORANDUM **

Jose Manuel. Martinez-Aguayo appeals from the district court’s judgment and challenges the 21-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.

Martinez-Aguayo challenges his sentence on double jeopardy and collateral estoppel grounds. Specifically, he claims that, because a 'magistrate judge in the District of Arizona previously determined that there was not probable cause to remove him to the Western District of Michigan for a violation of supervised release, the district court was precluded from using the underlying prior conviction in the Western District of Michigan to calculate his criminal history score. We review de novo claims of double jeopardy and collateral estoppel. See United States v. Castillo-Basa, 483 F.3d 890, 895 (9th Cir. 2007). Contrary to Martinez-Aguayo’s contention, the district court correctly determined that the magistrate judge’s findings at the probable cause hearing did not have pre-clusive effect under the Double Jeopardy Clause. See United States ex rel. Rutz v. Levy, 268 U.S. 390, 393, 45 S.Ct. 516, 69 L.Ed. 1010 (1925) (removal proceedings do “not operate to put the defendant in jeopardy”); United States v. Stoltz, 720 F.3d 1127, 1131 (9th Cir. 2013) (principles of double jeopardy “are not implicated” before the point at which jeopardy attaches). Martinez-Aguayo’s claim of collateral es-toppel is equally unpersuasive. See Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

AFFIRMED.

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