United States v. Julio Garcia-Rosas

610 F. App'x 652

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2015
• Docket: 13-50482
• Status: Unpublished

Opinion

MEMORANDUM **

Julio Cesar Garcia-Rosas appeals from the district court’s judgment and challenges the 48-month sentence imposed following his jury-trial conviction for attempted 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.

Garcia-Rosas contends that the district court erred by using the Ninth Circuit model jury instruction on reasonable doubt. This claim fails because this court has repeatedly upheld the model instruction. See United States v. Alcantara-Castillo, 788 F.3d 1186, 1198 n. 4 (9th Cir.2015).

Garcia-Rosas 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 the jury. This argument fails. Contrary to Garcia-Rosas’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), continues to bind this Court. 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.”).

AFFIRMED.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).