United States v. Felipe Olvera-Campos
UNITED STATES of America, Plaintiff-Appellee, v. Felipe De Jesus OLVERA-CAMPOS, Defendant-Appellant
- Proceeding
- appeal
- Trial court
- United States District Court for the Southern District of California
- Trial judge
- Barry T. Moskowitz (district judge)
- Outcome
- affirmed — AFFIRMED.
- Area
- criminal
- Panel
- Barry G. Silverman (author), Smith, Consuelo M. Callahan
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion
FILED NOT FOR PUBLICATION SEP 22 2010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. 10-50050 Plaintiff - Appellee, D.C. No. 3:08-cr-04390-BTM-1 v. MEMORANDUM * FELIPE DE JESUS OLVERA-CAMPOS, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Barry T. Moskowitz, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN and N.R. SMITH, Circuit Judges.
Felipe Olvera-Campos appeals the sentence imposed following his guilty plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326.
* 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). Olvera-Campos contends that the district court erred when it imposed a sentence in excess of the two-year statutory maximum under 8 U.S.C. § 1326. He asserts that Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), has been effectively overruled by Nijhawan v. Holder, 129 S. Ct. 2294 (2009). This contention lacks merit. Almendarez-Torres has never been expressly overruled and continues to constitute binding precedent. See, e.g., United States v. Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir. 2009) (per curiam); United States v. Martinez-Rodriguez, 472 F.3d 1087, 1093 (9th Cir. 2007).
As Olvera-Campos concedes, his assertion that the district court erred when it applied a 16-level “crime of violence” adjustment under U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his prior conviction for inflicting corporal injury on a spouse, in violation of California Penal Code § 273.5, is foreclosed. See United States v. Laurico-Yeno, 590 F.3d 818, 823 (9th Cir. 2010) (holding that a conviction under California Penal Code § 273.5 is categorically a “crime of violence” under the Guidelines because the offense requires the intentional use of physical force against the person of another).
AFFIRMED.