FILED
NOT FOR PUBLICATION OCT 31 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10559
Plaintiff-Appellee, D.C. No. 2:15-cr-01090-DGC
v.
MEMORANDUM*
CIRO HERRERA-VASQUEZ, a.k.a. Ciro
Herrera-Vazquez,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and GOULD, Circuit Judges.
Ciro Herrera-Vasquez appeals from the district court’s judgment and
challenges the 30-month sentence imposed following his guilty-plea conviction for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.
Herrera-Vasquez contends that his sentence is substantively unreasonable
because the Guidelines range allegedly overstated the seriousness of his criminal
history. The district court did not abuse its discretion in imposing Herrera-
Vasquez’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The
within-Guidelines sentence is substantively reasonable in light of the 18 U.S.C.
§ 3553(a) sentencing factors and the totality of the circumstances, including
Herrera-Vasquez’s criminal and immigration history. See Gall, 552 U.S. at 51.
Herrera-Vasquez next contends the district court erred by enhancing his
sentence under 8 U.S.C. § 1326(b). Specifically, he argues that Almendarez-Torres
v. United States, 523 U.S. 224 (1998), which permits enhancement based on the
existence of a prior felony, is no longer good law. As Herrera-Vasquez
acknowledges, this argument is foreclosed. 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) (“We have repeatedly held . . .
that Almendarez-Torres is binding unless it is expressly overruled by the Supreme
Court.”).
AFFIRMED.
2 15-10559