USA v. Jose Leyva-Martinez

Filing 920110127


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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE ANTONIO LEYVA-MARTINEZ, a.k.a. Jose Antonio LevyaHernandez, Defendant-Appellant. No. 10-50269 D.C. No. 3:09-cr-04334-L Southern District of California, San Diego ORDER Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding Submitted to a Motions Panel December 6, 2010 Filed January 27, 2011 Before: Alfred T. Goodwin, Pamela Ann Rymer, and Susan P. Graber, Circuit Judges. COUNSEL Daniel E. Butcher, Esquire, Assistant U.S. Attorney, Office of The U.S. Attorney, San Diego, California, for the plaintiff-appellee. Gary Paul Burcham, Esquire, San Diego, California, for the defendant-appellant. 1721 1722 UNITED STATES v. LEYVA-MARTINEZ ORDER PER CURIAM: Jose Antonio Leyva-Martinez appeals from the 70-month sentence imposed following his conviction for attempted reentry after deportation, in violation of 8 U.S.C. 1326. We have jurisdiction pursuant to 28 U.S.C. 1291, and we affirm. Leyva-Martinez contends that the district court erred when it applied a 16-level enhancement, pursuant to U.S.S.G. 2L1.2(b)(1)(A)(ii), because his prior conviction for inflicting corporal injury on a spouse or co-habitant, in violation of California Penal Code 273.5, does not qualify as a crime of violence. As Leyva-Martinez concedes however, this contention is foreclosed. See United States v. Laurico-Yeno, 590 F.3d 818, 823 (9th Cir.) (holding that a conviction under California Penal Code 273.5 is categorically a "crime of violence" under the Sentencing Guidelines because the offense requires the intentional use of physical force against the person of another), cert. denied, 131 S. Ct. 216 (2010). Leyva-Martinez also contends the district court erred by applying 8 U.S.C. 1326(b) to enhance his 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), so that his prior felony conviction must be either admitted or proved to a jury beyond a reasonable doubt. We have repeatedly held, however, that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court. See, e.g., United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009), cert. denied, 131 S. Ct. 583 (2010); Butler v. Curry, 528 F.3d 624, 643-44 (9th Cir.) (citing cases), cert. denied 129 S. Ct. 767 (2009). Because Nijhawan does not even mention Almendarez-Torres, we cannot conclude that Almendarez-Torres has been expressly overruled and, accordingly, we reject Leyva-Martinez's con- UNITED STATES v. LEYVA-MARTINEZ 1723 tention to the contrary and grant appellee's motion for summary affirmance. AFFIRMED.

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