FILED
NOT FOR PUBLICATION JUL 09 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10411
Plaintiff - Appellee, D.C. No. 2:12-cr-01301-ROS-1
v.
MEMORANDUM*
LEONARDO PORTILLO-VEGA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Submitted June 13, 2014**
San Francisco, California
Before: O’SCANNLAIN, SACK***, and BEA, Circuit Judges.
Leonardo Portillo-Vega appeals his conviction and sentence under
8 U.S.C. § 1326 for illegal reentry after deportation.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
Portillo-Vega contends that his conviction should be vacated and the
indictment against him dismissed because his identity was the fruit of an illegal
arrest by state authorities. Assuming—without deciding—that Portillo-Vega was
illegally arrested and that he has not waived his illegal-arrest claim by entering an
unconditional guilty plea, his argument is foreclosed by Supreme Court and Ninth
Circuit precedent. I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984) (“The
‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is
never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that
an unlawful arrest, search, or interrogation occurred.”); United States v. Guzman-
Bruno, 27 F.3d 420, 421–22 (9th Cir. 1994) (holding, within the context of a
prosecution under 8 U.S.C. § 1326, that neither defendant’s “identity nor the
records of his previous convictions and deportations could be suppressed as a
result of the illegal arrest”).
Portillo-Vega attempts to distinguish these cases, and raise a separate basis
for vacating his conviction, by claiming that the illegal arrest constituted
outrageous government conduct. Because Portillo-Vega did not raise this
argument before the district court, it is waived, United States v. Robertson, 52 F.3d
789, 791 (9th Cir. 1994) (“Issues not presented to the district court cannot
2
generally be raised for the first time on appeal.”), and none of the exceptions to
waiver apply here. Id.
Portillo-Vega also argues that the Sixth Amendment prohibited the district
court from increasing Portillo-Vega’s sentence based on his prior felony
conviction, since the existence of the conviction was not a fact found by the jury.
The Supreme Court rejected precisely this argument in Almendarez-Torres v.
United States, 523 U.S. 224, 239–47 (1998). Portillo-Vega claims that subsequent
cases have overruled Almendarez-Torres, but the Supreme Court has expressly
declined to revisit its holding in that case. See Alleyne v. United States, 133 S. Ct.
2151, 2160 n.1 (2013). Almendarez-Torres continues to bind us. Consequently,
Portillo-Vega’s Sixth Amendment argument fails.
AFFIRMED.
3