United States v. Francisco Garcia-Manzo , 383 F. App'x 660 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 14 2010
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. 09-50313
Plaintiff - Appellee, D.C. No. 3:08-CR-03690-DMS
v.
MEMORANDUM *
FRANCISCO JAVIER GARCIA-
MANZO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Francisco Javier Garcia-Manzo appeals from the 70-month sentence
imposed following his guilty-plea conviction for attempted entry after deportation,
in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
*
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).
we affirm.
Garcia-Manzo contends that the district court procedurally erred by failing
to address his policy challenge to the enhancements that apply under U.S.S.G.
§ 2L1.2(b)(1)(A). The record reflects that the district court responded to Garcia-
Manzo’s argument and therefore did not procedurally err. See United States v.
Carty, 520 F.3d 884, 992-93 (9th Cir. 2008) (en banc).
Garcia-Manzo also contends that Almendarez-Torres v. United States, 523
U.S. 224 (1998), should be overruled. As Garcia-Manzo recognizes, this
contention is foreclosed. See United States v. Grajeda, 581 F.3d 1186, 1197 (9th
Cir. 2009) (recognizing that although the continuing viability of Almendarez-
Torres has been called into question, this court is bound to follow controlling
Supreme Court precedent).
AFFIRMED.
2 09-50313