United States v. Victor Silva

FILED
NOT FOR PUBLICATION MAY 27 2010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. 08-50497
Plaintiff - Appellee, D.C. No. 3:08-cr-00971-L-1
v.
MEMORANDUM *
VICTOR EDUARDO SILVA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted October 8, 2009
Pasadena, California
Before: W. FLETCHER and CLIFTON, Circuit Judges, and SINGLETON **,
Senior District Judge.
Victor Eduardo Silva pled guilty to attempted entry after deportation in
violation of 8 U.S.C. § 1326. He now appeals his fifty-seven-month prison
sentence, making three arguments. We reject each and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
Silva first argues that California’s attempt definition is too broad, for two
reasons, to support a finding that he was convicted of a crime of violence under the
categorical approach of Taylor v. United States, 495 U.S. 575 (1990). He begins by
noting that California’s definition of attempt requires only a “slight act” where the
generic definition requires a “substantial step.” The distinction is illusory; we have
held that California’s definition of attempt is coextensive with the generic
definition despite the difference in wording. See United States v. Saavedra-
Velazquez, 578 F.3d 1103, 1110 (9th Cir. 2009). Silva next argues that the generic
definition of attempt, unlike California’s definition, includes the affirmative
defense of voluntary abandonment. This argument is also foreclosed. See United
States v. Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010) (“The availability of
an affirmative defense is not relevant to the categorical analysis.”).
The second issue Silva raises on appeal is that the district court procedurally
erred at the sentencing hearing by failing to address one of his arguments. One
prior conviction increased both Silva’s criminal-history category and his base
offense-level. Silva contends that the district court neither considered nor
explained why this “double counting” shouldn’t warrant a reduced sentence under
the factors in 18 U.S.C. § 3553(a). The sentencing transcript makes clear that the
district court listened to Silva’s arguments, considered them, understood them, and
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explained why it was imposing a fifty-seven month sentence despite them. There
was no procedural error. See Rita v. United States, 551 U.S. 338, 358–59 (2007).
Finally, Silva argues that his sentence is unconstitutional because his prior
conviction, which was not alleged in the indictment, proved to a jury beyond a
reasonable doubt, or admitted by Silva, nonetheless increased his maximum
sentence from two years to twenty under 8 U.S.C. § 1326(b)(2). The Supreme
Court rejected this argument while considering an earlier version of the statute in
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but Silva argues
that later Supreme Court decisions and Congressional revisions to the statute either
overruled or abrogated Almendarez-Torres. Silva acknowledges that his argument
is foreclosed by several opinions of this court. See, e.g., United States v. Gomez-
Mendez, 486 F.3d 599, 606 (9th Cir. 2007). We are bound by our precedent and
accordingly reject Silva’s argument.
AFFIRMED.
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