FILED
NOT FOR PUBLICATION DEC 21 2011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. 11-10023
Plaintiff - Appellee, D.C. No. 3:10-cr-00053-LRH-
RAM-1
v.
MIGUEL ALCALA-VALADEZ, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted December 8, 2011 **
San Francisco, California
Before: O’SCANNLAIN, COWEN,*** and BERZON, Circuit Judges.
Defendant-Appellant Miguel Alcala-Valadez was convicted and sentenced
for the offense of attempting illegally to enter the United States following
*
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 E. Cowen, Senior Circuit Judge for the Third
Circuit, sitting by designation.
deportation, in violation of 8 U.S.C. § 1326. He appeals his sentence, arguing: (1)
that the district abused its discretion in imposing an upward variance from the
suggested Guidelines range; (2) that the court abused its discretion in rejecting his
request for a downward departure on the basis of his completed state sentence; and
(3) that the court violated his Fifth and Sixth Amendment rights when it increased
the statutory maximum sentence to which he was subject on the basis of its finding
that he was deported following conviction for a felony. We affirm.
1. Alcala-Valadez argues that the district court’s decision to impose an
upward variance erroneously relied on the Presentence Investigation Report’s
(PSR) description of the offense conduct underlying his state narcotics conviction.
He concedes, however, that he did not contest the PSR’s factual statements before
the district court. The district court was therefore entitled to rely on the PSR’s
undisputed statements. See United States v. Ameline, 409 F.3d 1073, 1085 (9th
Cir. 2005) (en banc).
Moreover, although Alcala-Valadez now purports to identify inconsistencies
in the PSR, he is mistaken. Contrary to his submission, the statute of conviction
listed in the PSR, Nev. Rev. Stat. § 453.3385, conforms to both the offense
conduct recited in the PSR (including the possession of methamphetamine) and the
suspended sentence he received as a result of his conviction. See Nev. Admin.
2
Code § 453.510; Nev. Rev. Stat. § 176A.100(1)(C). The PSR therefore contained
no “indicia of unreliability.”
2. Alcala-Valadez also agues that the district court abused its discretion in
denying his request for a downward departure pursuant to U.S.S.G. § 5K2.23.
Relying on United States v. Rivera-Gomez, 634 F.3d 507 (9th Cir. 2011), he
maintains that, because his incarceration for state gun and drug offenses led to his
identification by federal authorities, the conduct underlying those offenses
constitutes “relevant conduct” supporting a downward departure for his illegal
reentry offense. See U.S.S.G. §§ 5K2.23, 5G1.3(b), 1B1.3(a).
Alcala-Valadez’s reliance on Rivera-Gomez is misplaced. Rivera-Gomez
held that resisting arrest could constitute relevant conduct for downward departure
purposes “if [the defendant] resisted arrest in order to ‘avoid detection or
responsibility’ for the illegal reentry offense.” 634 F.3d at 513. Because Alcala-
Valadez does not contend that his state gun and drug offenses were intended to
avoid detection or responsibility for his illegal reentry offense, Rivera-Gomez is
inapposite. Moreover, the sentence for Alcala-Valadez’s state drug conviction was
imposed after revocation of his probation for that offense. The district court’s
imposition of a consecutive sentence therefore complied with the Sentencing
Commission’s recommendation that sentences imposed after revocation of
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probation “run consecutively to any term of imprisonment imposed upon
revocation.” U.S.S.G. § 7B1.3, app. n.4.
3. Finally, Alcala-Valadez maintains that he was entitled to a jury trial on
the issue of his prior felony conviction, and that the government was required to
prove the fact of his prior felony conviction beyond a reasonable doubt. He
concedes that these challenges are foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but argues that Almendarez-Torres has lost its vitality.
Almendarez-Torres, however, “continues to constitute binding authority.” United
States v. Valdovinos-Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011).
AFFIRMED.
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