United States v. Felipe Olvera-Campos , 396 F. App'x 406 ( 2010 )

FILED
NOT FOR PUBLICATION SEP 22 2010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. 10-50050
Plaintiff - Appellee, D.C. No. 3:08-cr-04390-BTM-1
v.
MEMORANDUM *
FELIPE DE JESUS OLVERA-CAMPOS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN and N.R. SMITH, Circuit Judges.
Felipe Olvera-Campos appeals the sentence imposed following his guilty
plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326.
*
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).
Olvera-Campos contends that the district court erred when it imposed a
sentence in excess of the two-year statutory maximum under 8 U.S.C. § 1326. He
asserts that Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), has
been effectively overruled by Nijhawan v. Holder, 129 S. Ct. 2294 (2009). This
contention lacks merit. Almendarez-Torres has never been expressly overruled
and continues to constitute binding precedent. See, e.g., United States v.
Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir. 2009) (per curiam); United States
v. Martinez-Rodriguez, 472 F.3d 1087, 1093 (9th Cir. 2007).
As Olvera-Campos concedes, his assertion that the district court erred when it
applied a 16-level “crime of violence” adjustment under U.S.S.G. §
2L1.2(b)(1)(A)(ii), based on his prior conviction for inflicting corporal injury on a
spouse, in violation of California Penal Code § 273.5, is foreclosed. See United
States v. Laurico-Yeno, 590 F.3d 818, 823 (9th Cir. 2010) (holding that a conviction
under California Penal Code § 273.5 is categorically a “crime of violence” under
the Guidelines because the offense requires the intentional use of physical force
against the person of another).
AFFIRMED.