United States v. Joel Guerrero-Almodovar , 693 F. App'x 546 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 15-50370
15-50372
Plaintiff-Appellee,
D.C. Nos. 3:09-cr-03915-DMS
v. 3:15-cr-00234-DMS
JOEL ARNOLDO GUERRERO- MEMORANDUM*
ALMODOVAR, a.k.a. Joel Guerrero-
Almodovar,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
In these consolidated appeals, Joel Arnoldo Guerrero-Almodovar challenges
the 63-month sentence imposed following his guilty-plea conviction for attempted
reentry of a removed alien, in violation of 8 U.S.C. § 1326, and the 12-month-and-
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
one-day consecutive sentence imposed upon revocation of supervised release. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Guerrero-Almodovar contends that the district court erred in applying a 16-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014) because his prior
conviction under California Penal Code § 211 is not a crime of violence. This
claim is foreclosed. See United States v. Becerril-Lopez, 541 F.3d 881, 893 & n.10
(9th Cir. 2008) (robbery conviction under California Penal Code § 211 is
categorically a crime of violence). Contrary to Guerrero-Almodovar’s assertion,
Descamps v. United States, 133 S. Ct. 2276 (2013), which concerns the modified
categorical approach, does not allow us to disregard Becerril-Lopez. See Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (three-judge panel is bound
by circuit precedent unless that precedent is “clearly irreconcilable” with the
reasoning of an intervening higher authority).
Guerrero-Almodovar next contends that the district court violated the Sixth
Amendment by increasing his sentence on the basis of a prior felony conviction
that was not found by a jury. As he concedes, this claim is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), which continues to bind
this Court. See United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011)
2 15-50370 & 15-50372
(order) (“We have repeatedly held . . . that Almendarez-Torres is binding unless it
is expressly overruled by the Supreme Court.”).
Finally, Guerrero-Almodovar argues that the district court denied him his
right of allocution before sentencing him on his violation of supervised release.
The record belies this claim. During a consolidated hearing, the court invited
Guerrero-Almodovar to speak before imposing sentence on his new conviction for
illegal reentry and his violation of supervised release. Thus, Guerrero-Almodovar
was given “an opportunity to make a statement and present any information in
mitigation,” Fed. R. Crim. P. 32.1(b)(2)(E), before the sentence was imposed. See
United States v. Allen, 157 F.3d 661, 666 (9th Cir. 1998).
AFFIRMED.
3 15-50370 & 15-50372