United States v. Victor Castaneda-Montes ( 2016 )

FILED
NOT FOR PUBLICATION
JUN 08 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50329
Plaintiff - Appellee, D.C. No. 3:15-cr-01103-LAB-1
v.
MEMORANDUM*
VICTOR MANUEL CASTANEDA-
MONTES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted May 4, 2016
Pasadena, California
Before: W. FLETCHER and GOULD, Circuit Judges and LEMELLE,** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.
Victor Manuel Castaneda-Montes (“Castaneda”) challenges his sentence of
69 months following a conviction for attempted reentry into the United States
following deportation, 8 U.S.C. § 1326(a). We affirm.
The district court did not plainly err in applying a 16-level crime of violence
enhancement. U.S.S.G. § 2L1.2(b)(1)(A)(ii). Castaneda argues for the first time on
appeal that his conviction for violating a restraining order with an act of violence
or a credible threat of violence is not categorically a crime of violence. But he has
not cited any case in which state courts have applied this statute to conduct that
does not rise to the federal definition of a crime of violence, and he has not
otherwise shown a “realistic probability” that the statute would be applied
overbroadly. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). The
district court’s application of the enhancement was thus not plain error.
Castaneda also argues that the sentencing scheme under 8 U.S.C. § 1326violates the Sixth Amendment. However, the Supreme Court has held otherwise.
See Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). And we have
previously rejected the argument that this part of Almendarez-Torres was
implicitly overruled by subsequent Supreme Court precedent. See United States v.
Maciel-Vasquez, 458 F.3d 994, 995–96 (9th Cir. 2006).
AFFIRMED.