United States v. Victor Castaneda-Montes

654 F. App'x 285

Opinion

MEMORANDUM **

Victor Manuel Castaneda-Montes (“Castaneda”) challenges his sentence of 69 •months following a conviction for attempted reentry into the United States following deportation, 8 U.S.C. § 1326(a). We affirm.

The district court did not plainly err in applying a 16-level crime of violence enhancement. U.S.S.G. § 2L1.2(b)(l)(A)(ii). Castaneda argues for the first time on appeal that his conviction for violating a restraining order with an act of violence or a credible threat of violence is not categorically a crime of violence. But he has not cited any case in which state courts have applied this statute to conduct that does not rise to the federal definition of a crime of violence, and he has not otherwise shown a “realistic probability” that the statute would be applied overbroadly. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). The district court’s application of the enhancement was thus not plain error.

Castaneda also argues that the sentencing scheme under 8 U.S.C. § 1326 violates the Sixth Amendment. However, the Supreme Court has held otherwise. See Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). And we have previously rejected the argument that this part of Almen-darez-Torres was implicitly overruled by subsequent Supreme Court precedent. See United States v. Maciel-Vasquez, 458 F.3d 994, 995-96 (9th Cir. 2006).

AFFIRMED.

** This disposition is not appropriáte for publi’ cation and is not precedent except as provided by 9th Cir. R. 36-3.