FILED
NOT FOR PUBLICATION DEC 14 2009
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. 08-50538
Plaintiff - Appellee, D.C. No. 3:08-cr-02546-GT-1
v.
MEMORANDUM *
CLAUDIO JUAREZ-MENDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, District Judge, Presiding
Submitted December 10, 2009 **
Pasadena, California
Before: HALL and SILVERMAN, Circuit Judges, and CONLON, *** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
In July 2008, Defendant pled guilty to one count of unlawful reentry by a
removed alien, in violation of 8 U.S.C. § 1326(a)-(b). Because Defendant had
previously been convicted of committing lewd acts on a child, a felony under Cal.
Penal Code § 288(a), the district court applied a 16-level enhancement pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(ii), yielding a Guidelines range of 46 to 57 months’
imprisonment; the district court ultimately sentenced Defendant to a 51-month
prison term. Defendant now challenges the reasonableness of his sentence.
First, we reject several of Defendant’s arguments as foreclosed, namely: (1)
that his § 288(a) conviction did not constitute a crime of violence for purposes of
U.S.S.G. § 2L1.2’s 16-level enhancement, see United States v. Medina-Villa, 567
F.3d 507, 511-12 (9th Cir. 2009); and (2) that the prior conviction exception
established in Almendarez-Torres v. United States, 523 U.S. 224 (1998), should be
limited to its facts, has been implicitly overruled, and renders unconstitutional 8
U.S.C. § 1326(b). See United States v. Garcia-Cardenas, 555 F.3d 1049, 1051 (9th
Cir. 2009) (per curiam) (listing cases).
Second, we reject Defendant’s argument that, by applying the Guidelines
enhancement, the district court abused its discretion under Kimbrough v. United
States, 552 U.S. 85 (2007), because U.S.S.G. § 2L1.2 purportedly lacks an
empirical basis. The policy behind the enhancement is sound. See United States v.
Ramirez-Garcia, 269 F.3d 945, 947-48 (9th Cir. 2001); United States v. Ruiz-
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Chairez, 493 F.3d 1089, 1091-92 (9th Cir. 2007). Moreover, even if the guideline
lacks an empirical basis, Kimbrough does not require a district court to reject it;
Kimbrough merely recognizes a district court’s discretion to do so.
Third, we reject Defendant’s argument that the district court denied him his
Sixth Amendment right to a jury trial, per Apprendi v. New Jersey, 530 U.S. 466
(2000), by finding the facts necessary to increase the statutory maximum
punishment applicable to his offense. Although the charging document in this case
did not specifically allege that Defendant had previously been removed after a
violent felony conviction—a necessary predicate to increasing the statutory
maximum sentence to 20 years, see 8 U.S.C. § 1326(b)(2)—Defendant admitted at
his change of plea hearing to a prior removal that occurred after his § 288(a)
conviction. This admission established beyond a reasonable doubt the temporal
relationship between Defendant’s violent felony conviction and his subsequent
removal. Accordingly, the absence of a jury finding on this issue did not constitute
an Apprendi violation. See United States v. Covian-Sandoval, 462 F.3d 1090,
1097-98 (9th Cir. 2006).
However, we vacate Defendant’s 51-month sentence and remand this case to
the district court to reconsider the weight to be afforded Defendant’s 18-year-old §
288(a) conviction in light of the court’s recent decision in United States v.
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Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), which had not yet been decided
at the time of Defendant’s sentencing.
VACATED and REMANDED.