FILED
NOT FOR PUBLICATION FEB 15 2011
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. 09-50475
Plaintiff - Appellee., D.C. No. 3:08-cr-2266-H-1
v.
MEMORANDUM *
LIONEL VALENZUELA-CARRANZA,
Defendants - Appellants.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted November 2, 2010
Pasadena, California
Before: SCHROEDER and TALLMAN, Circuit Judges, and JARVEY, District
Judge.**
Lionel Valenzuela-Carranza appeals his jury conviction for attempting to
enter the United States without consent after being removed, in violation of 8
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, sitting by designation.
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U.S.C. § 1326. He also challenges the reasonableness of his sentence.
The evidence demonstrated that Valenzuela-Carranza had the requisite intent
required for a conviction under 8 U.S.C. § 1326 because he attempted to reenter at
the San Ysidro, California, Port of Entry without first obtaining the Attorney
General’s permission. 8 U.S.C. § 1326.
The district court adequately considered and explained Valenzuela-
Carranza’s sentence. It heard arguments from the parties regarding a downward
variance from the Sentencing Guidelines range and explicitly considered the
factors in 18 U.S.C. § 3553(a). The Court stated that the sentence imposed was
sufficient but not greater than necessary to accomplish the goals of sentencing. See
Rita v. United States, 551 U.S. 338, 358 (2007). There is no heightened obligation
to explain a sentence enhanced pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Also,
Valenzuela-Carranza’s conviction for spousal abuse under California Penal Code
section 273.5 qualifies as a crime of violence for purposes of the Guidelines
section. United States v. Laurico-Yeno, 590 F.3d 818, 820 (9th Cir. 2009), cert.
denied, 131 S. Ct. 216 (2010).
The within-Guidelines sentence was substantively reasonable. The district
court considered the staleness of Valenzuela-Carranza’s prior conviction but noted
his more recent criminal history, including a crime of violence to a spouse or
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cohabitant. The case is, therefore, unlike United State v. Amezcua-Vasquez, 567
F.3d 1050, 1056 (9th Cir. 2009), reh’g en banc denied, 586 F.3d 1176 (9th Cir.
2009), where the district judge did not adequately consider the staleness of the
defendant’s twenty-five-year-old conviction.
Finally, Almendarez-Torres v. United States, 523 U.S. 224, 237 (1998), has
not been overruled by Nijhawan v. Holder, 129 S. Ct. 2294, 2302 (2009); United
States v. Valdovenos-Mendez, No. 09-50532 (9th Cir. (date of filing), 2010.)
Therefore, Valenzuela-Carranza’s prior conviction did not have to be proven to a
jury beyond a reasonable doubt to result in an increased maximum punishment
under § 1326(b).
AFFIRMED.
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