United States v. Julio Garcia-Rosas

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50482

Plaintiff - Appellee, D.C. No. 3:13-cr-00519-LAB

v.
MEMORANDUM*
JULIO CESAR GARCIA-ROSAS,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding

Submitted July 21, 2015**

Before: CANBY, BEA, and MURGUIA, Circuit Judges.

Julio Cesar Garcia-Rosas appeals from the district court’s judgment and

challenges the 48-month sentence imposed following his jury-trial 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).
 Garcia-Rosas contends that the district court erred by using the Ninth Circuit

model jury instruction on reasonable doubt. This claim fails because this court

has repeatedly upheld the model instruction. See United States v.

Alcantara-Castillo, No. 12-50477, 2015 WL 3619853, at *10 n.4 (9th Cir. June 11,

2015).

Garcia-Rosas next contends that the district court violated the Sixth

Amendment by increasing his sentence on the basis of a prior felony conviction

that was not found by the jury. This argument fails. Contrary to Garcia-Rosas’s

contention, the Supreme Court’s holding in Almendarez-Torres v. United States,

523 U.S. 224 (1988), continues to bind this Court. See Alleyne v. United States,

133 S. Ct. 2151, 2160 n.1 (2013) (declining to revisit Almendarez-Torres); United

States v. Leyva–Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per curiam) (“We

have repeatedly held . . . that Almendarez-Torres is binding unless it is expressly

overruled by the Supreme Court.”).

AFFIRMED.

2 13-50482