NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 15 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-50066
Plaintiff - Appellee, D.C. No. 8:07-cr-00275-JVS-1
v.
MEMORANDUM *
FERNANDO ALBERTO VELASQUEZ-
BOSQUE,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued March 2, 2010
Submitted April 8, 2010
Pasadena, California
Before: CANBY, GOULD and IKUTA, Circuit Judges.
Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010) (order), held that
carjacking under California Penal Code section 215 is a categorical crime of
violence under 18 U.S.C. § 16. Id. at 1058. Nothing in Johnson v. United States,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
130 S. Ct. 1265 (2010), is irreconcilable with Nieves-Medrano, and therefore this
court has no authority to disregard Nieves-Medrano. See Miller v. Gammie, 335
F.3d 889, 900 (9th Cir. 2003) (en banc). Velasquez-Bosque’s challenge to his
conviction under 8 U.S.C. § 1326(b)(2) fails.
As the government concedes, the district court erred in admitting the Wilson
Declaration at trial, because such admission was in violation of the Confrontation
Clause. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009).
However, because the declaration was cumulative of Agent Johnston’s testimony,
that testimony was tested through extensive cross-examination, and there was no
evidence to contradict the element for which the declaration was offered, we hold
that the error was harmless beyond a reasonable doubt. See United States v.
Larson, 495 F.3d 1094, 1107–1108 (9th Cir. 2007) (en banc). Even though Agent
Johnston’s testimony did not precisely track the language of 8 U.S.C. § 1326, it
was sufficient to constitute evidence of the Attorney General’s lack of consent to
the “alien’s reapplying for admission.” See United States v. Cervantes-Flores, 421
F.3d 825, 834 (9th Cir. 2005) (per curiam).
Last, Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998),
forecloses Velasquez-Bosque’s challenge to the constitutionality of § 1326(b),
including the claim that Nijhawan v. Holder, 129 S. Ct. 2294 (2009), “softened”
Almendarez-Torres’s holding. 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).1
AFFIRMED.
1
We address the government’s cross-appeal in a separate opinion filed
concurrently with this memorandum disposition.