FILED
NOT FOR PUBLICATION FEB 24 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50066
Plaintiff - Appellee, D.C. No. 3:13-cr-02162-GPC
v.
MEMORANDUM*
JACOBO FLORES-VASQUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Jacobo Flores-Vasquez appeals from the district court’s judgment and
challenges the 48-month sentence imposed following his guilty-plea conviction for
attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
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).
Flores-Vasquez contends that his sentence violates the Sixth Amendment
because the fact of the prior conviction that subjected him to a higher statutory
maximum under section 1326(b) was not admitted by him or proven to a jury. The
Supreme Court rejected this argument in Almendarez-Torres v. United States, 523
U.S. 224, 239-47 (1998). Flores-Vasquez’s contention that Almendarez-Torres has
been overruled is incorrect. See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1
(2013) (declining to revisit holding in Almendarez-Torres); see also United States
v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (Supreme Court precedent is
controlling until it is explicitly overruled by the Court).
AFFIRMED.
2 14-50066