United States v. Francisco Garcia-Manzo

Court of Appeals for the Ninth Circuit · 09-50313 · 2010-06-14 · Unpublished

UNITED STATES of America, Plaintiff—Appellee, v. Francisco Javier GARCIA-MANZO, Defendant—Appellant

Area: other
Panel: William C. Canby, Jr. (author), Thomas, Fletcher

Analysis

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Opinion

FILED NOT FOR PUBLICATION JUN 14 2010

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-50313 Plaintiff - Appellee, D.C. No. 3:08-CR-03690-DMS v. MEMORANDUM * FRANCISCO JAVIER GARCIA- MANZO, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted May 25, 2010 ** Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

Francisco Javier Garcia-Manzo appeals from the 70-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). we affirm.

Garcia-Manzo contends that the district court procedurally erred by failing to address his policy challenge to the enhancements that apply under U.S.S.G.

§ 2L1.2(b)(1)(A). The record reflects that the district court responded to Garcia- Manzo’s argument and therefore did not procedurally err. See United States v. Carty, 520 F.3d 884, 992-93 (9th Cir. 2008) (en banc).

Garcia-Manzo also contends that Almendarez-Torres v. United States, 523 U.S. 224 (1998), should be overruled. As Garcia-Manzo recognizes, this contention is foreclosed. See United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (recognizing that although the continuing viability of Almendarez- Torres has been called into question, this court is bound to follow controlling Supreme Court precedent).

AFFIRMED.

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