United States v. Ramon Valle Zuniga , 598 F. App'x 558 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-50186
14-50187
Plaintiff - Appellee,
D.C. Nos. 3:13-cr-02639-CAB
v. 3:14-cr-07004-CAB
RAMON ROSA VALLE ZUNIGA, a.k.a.
Berlin Amparo-Rivera, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
In these consolidated appeals, Ramon Rosa Valle Zuniga appeals from the
district court’s judgment and challenges his 38-month, aggregate custodial
sentence and 36-month term of supervised release imposed upon his guilty plea
*
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).
conviction for being a removed alien found in the United States in violation of 8
U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Valle Zuniga contends that the district court procedurally erred by (1) failing
to explain adequately the sentences imposed, (2) failing to respond to his
sentencing arguments, and (3) impermissibly imposing the revocation sentence to
punish him for the new criminal conviction. These claims fail. The record reflects
that the court considered Valle Zuniga’s arguments, sufficiently explained the
sentence, and did not impose the revocation sentence to punish the new offense.
See United States v. Reyes-Solosa, 761 F.3d 972, 975-76 (9th Cir. 2014) (in
imposing a revocation sentence, a district court may “consider the entire picture,
including the sentence imposed for the underlying crime that caused the
revocation”); United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
Valle Zuniga next contends that the court erred by failing to explain why a
new term of supervised release was warranted despite U.S.S.G. § 5D1.1(c). We
review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,
1108 (9th Cir. 2010), and find none. Valle Zuniga has not shown a reasonable
probability that he would have received a different sentence had the district court
given explicit consideration to section 5D1.1(c). See United States v. Dallman,
533 F.3d 755, 762 (9th Cir. 2008).
2 14-50186 & 14-50187
Finally, Valle Zuniga contends that the Sixth Amendment prohibited the
district court from increasing his sentence based on his prior felony conviction
because the fact of the conviction was not admitted by him or found by a jury.
This argument fails. Notwithstanding Alleyne v. United States, 133 S. Ct. 2151
(2013), the Supreme Court’s holding in Almendarez-Torres v. United States, 523
U.S. 224 (1998), continues to bind this court. See Alleyne, 133 S. Ct. at 2160 n.1;
United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per curiam)
(“We have repeatedly held . . . that Almendarez-Torres is binding unless it is
expressly overruled by the Supreme Court.”).
AFFIRMED.
3 14-50186 & 14-50187