United States v. Jose Osorio-Reyes

FILED
NOT FOR PUBLICATION SEP 29 2011
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. 10-50449
Plaintiff - Appellee, D.C. No. 3:09-cr-03593-MMA-1
v.
MEMORANDUM *
JOSE OSORIO-REYES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
**
Submitted September 27, 2011
Before: HAWKINS, SILVERMAN and W. FLETCHER, Circuit Judges.
Jose Osorio-Reyes appeals the sentence imposed following his guilty plea to
attempted entry after deportation in violation of 8 U.S.C. § 1326. Osorio-Reyes
contends that the district court erred by applying 8 U.S.C. § 1326(b) to enhance his
*
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).
sentence. Specifically, he argues that Almendarez–Torres v. United States, 523
U.S. 224 (1998), which permits enhancement based on the existence of a prior
felony, has been overruled by Nijhawan v. Holder, 129 S. Ct. 2294 (2009), and
United States v. O’Brien, 130 S. Ct. 2169 (2010), so that his prior felony
conviction must be either admitted or proved to a jury beyond a reasonable doubt.
The district court did not err by treating Osorio-Reyes’ prior felony conviction as a
sentencing enhancement and increasing his statutory maximum sentence. See
United States v. Valdovinos–Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011) (holding
that Almendarez–Torres has not been overruled by Nijhawan and continues to
constitute binding authority); United States v. Grajeda, 581 F.3d 1186, 1197 (9th
Cir. 2009) (holding that Almendarez–Torres is binding unless it is expressly
overruled by the Supreme Court).
AFFIRMED.