FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50269
Plaintiff-Appellee, D.C. No.
v. 3:09-cr-04334-L
JOSE ANTONIO LEYVA-MARTINEZ, Southern District of
a.k.a. Jose Antonio Levya- California,
Hernandez, San Diego
Defendant-Appellant.
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 plain-
tiff-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 re-
entry 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 inflict-
ing 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 conten-
tion is foreclosed. See United States v. Laurico-Yeno, 590
F.3d 818, 823 (9th Cir.) (holding that a conviction under Cali-
fornia Penal Code § 273.5 is categorically a “crime of vio-
lence” under the Sentencing Guidelines because the offense
requires the intentional use of physical force against the per-
son 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. Specifi-
cally, 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 can-
not 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 sum-
mary affirmance.
AFFIRMED.