United States v. Lionel Valenzuela-Carranza

Opinion — Jarvey

FILED NOT FOR PUBLICATION FEB 15 2011

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. 09-50475 Plaintiff - Appellee., D.C. No. 3:08-cr-2266-H-1 v. MEMORANDUM * LIONEL VALENZUELA-CARRANZA, Defendants - Appellants.

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding Argued and Submitted November 2, 2010 Pasadena, California Before: SCHROEDER and TALLMAN, Circuit Judges, and JARVEY, District Judge.** Lionel Valenzuela-Carranza appeals his jury conviction for attempting to enter the United States without consent after being removed, in violation of 8 * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable John A. Jarvey, United States District Judge for the Southern District of Iowa, sitting by designation.

1 U.S.C. § 1326. He also challenges the reasonableness of his sentence.

The evidence demonstrated that Valenzuela-Carranza had the requisite intent required for a conviction under 8 U.S.C. § 1326 because he attempted to reenter at the San Ysidro, California, Port of Entry without first obtaining the Attorney General’s permission. 8 U.S.C. § 1326.

The district court adequately considered and explained Valenzuela- Carranza’s sentence. It heard arguments from the parties regarding a downward variance from the Sentencing Guidelines range and explicitly considered the factors in 18 U.S.C. § 3553(a). The Court stated that the sentence imposed was sufficient but not greater than necessary to accomplish the goals of sentencing. See Rita v. United States, 551 U.S. 338, 358 (2007). There is no heightened obligation to explain a sentence enhanced pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Also, Valenzuela-Carranza’s conviction for spousal abuse under California Penal Code section 273.5 qualifies as a crime of violence for purposes of the Guidelines section. United States v. Laurico-Yeno, 590 F.3d 818, 820 (9th Cir. 2009), cert.

denied, 131 S. Ct. 216 (2010).

The within-Guidelines sentence was substantively reasonable. The district court considered the staleness of Valenzuela-Carranza’s prior conviction but noted his more recent criminal history, including a crime of violence to a spouse or 2 cohabitant. The case is, therefore, unlike United State v. Amezcua-Vasquez, 567 F.3d 1050, 1056 (9th Cir. 2009), reh’g en banc denied, 586 F.3d 1176 (9th Cir.

2009), where the district judge did not adequately consider the staleness of the defendant’s twenty-five-year-old conviction.

Finally, Almendarez-Torres v. United States, 523 U.S. 224, 237 (1998), has not been overruled by Nijhawan v. Holder, 129 S. Ct. 2294, 2302 (2009); United States v. Valdovenos-Mendez, No. 09-50532 (9th Cir. (date of filing), 2010.)

Therefore, Valenzuela-Carranza’s prior conviction did not have to be proven to a jury beyond a reasonable doubt to result in an increased maximum punishment under § 1326(b).

AFFIRMED.