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United States v. Jose Osorio-Reyes

Court of Appeals for the Ninth Circuit · 10-50449 · 2011-09-29 · Unpublished

UNITED STATES of America, Plaintiff—Appellee, v. Jose OSORIO-REYES, Defendant—Appellant

Area
other
Panel
James S. Hawkins (author), Fletcher, Barry G. Silverman

Analysis

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Opinion

FILED NOT FOR PUBLICATION SEP 29 2011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. 10-50449 Plaintiff - Appellee, D.C. No. 3:09-cr-03593-MMA-1 v. MEMORANDUM * JOSE OSORIO-REYES, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding ** Submitted September 27, 2011 Before: HAWKINS, SILVERMAN and W. FLETCHER, Circuit Judges.

Jose Osorio-Reyes appeals the sentence imposed following his guilty plea to attempted entry after deportation in violation of 8 U.S.C. § 1326. Osorio-Reyes contends that the district court erred by applying 8 U.S.C. § 1326(b) to enhance his * 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). sentence. Specifically, he argues that Almendarez–Torres v. United States, 523 U.S. 224 (1998), which permits enhancement based on the existence of a prior felony, has been overruled by Nijhawan v. Holder, 129 S. Ct. 2294 (2009), and United States v. O’Brien, 130 S. Ct. 2169 (2010), so that his prior felony conviction must be either admitted or proved to a jury beyond a reasonable doubt.

The district court did not err by treating Osorio-Reyes’ prior felony conviction as a sentencing enhancement and increasing his statutory maximum sentence. See United States v. Valdovinos–Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011) (holding that Almendarez–Torres has not been overruled by Nijhawan and continues to constitute binding authority); United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (holding that Almendarez–Torres is binding unless it is expressly overruled by the Supreme Court).

AFFIRMED.

Cites, in this corpus