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NOT FOR PUBLICATION MAY 27 2010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

2
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.