NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 02 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-50239
Plaintiff - Appellee, D.C. No. 3:14-cr-3459-BTM-1
v.
MEMORANDUM*
RAUL MENDEZ-BELLO,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted November 9, 2016
Pasadena, California
Before: BYBEE and SCHROEDER, Circuit Judges and SMITH,** Chief District
Judge.
1. Raul Mendez-Bello (Petitioner) claims that the admission at trial of his
attorney’s previous statements violated the notice requirements of Rule 404(b) of
the Federal Rules of Evidence and Rule 16(a)(1)(B)(I) of the Federal Rules of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
Criminal Procedure, and infringed on his Sixth Amendment rights to conflict-free
counsel and confront witnesses. Because admission of the attorney statement did
not affect the verdict, we AFFIRM.
At trial there was no dispute that Petitioner was not a citizen of the United
States and had entered the country without authorization. The only contested issue
was whether Petitioner entered the country with the intent to be free from official
restraint. The evidence showed that Petitioner was caught crossing the border in an
area where “you can hide really eas[il]y” because it is “desolate,” filled with
boulders, tumbleweeds, and brush. Petitioner was seen running across a road into
“really heavy brush” where Petitioner then “stopped and ducked down.” Since this
crossing was done during the night, Border Patrol agents had to search for several
minutes with flashlights to find Petitioner. One of the agents eventually found
Petitioner laying on the ground and concealing himself in tumbleweeds. All of this
evidence suggests that Petitioner was not trying to get caught, but instead trying to
successfully enter the country undetected.
Petitioner testified and maintained that he was entering the United States
with the intention of being caught in order to gain food and shelter. As evidence of
this intent, Petitioner briefly noted that he had not been in contact with his family
in the United States for over a decade. The prosecution cross-examined Petitioner
using his attorney’s previous sentencing statement which called Petitioner’s lack of
familial contact into question. However, this short line of questioning was by no
means the centerpiece of the prosecution’s case; indeed, it was little more than a
footnote. All of the prosecution’s case-in-chief, and nearly all of the cross-
examination of Petitioner, focused on the circumstances under which Petitioner
crossed the border and his apprehension.
Similarly, during closing argument, the prosecution never mentioned
Petitioner’s relationship with his family or the attorney statement, and defense
counsel only mentioned Petitioner’s familial relationship very briefly. Instead, both
parties focused on the facts surrounding Petitioner’s unlawful entry (i.e., whether
he ran, was hiding, etc.), which overwhelmingly suggested that Petitioner entered
the United States and attempted to evade capture. The only evidence to the
contrary was Petitioner’s own testimony, which the jury could understandably have
discounted as self-serving. Any error, therefore, was harmless. See United States v.
Vega, 188 F.3d 1150, 1153-54 (9th Cir. 1999) (noting that an error is harmless if
“it is more probable than not that the error did not materially affect the verdict”).
Accordingly, the conviction is AFFIRMED.
2. Petitioner argues that the district court ignored Alleyne v. United States,
133 S. Ct. 2151 (2013) and sentenced him beyond the statutory maximum period
of confinement. We review Petitioner’s claim de novo and AFFIRM.
In an illegal reentry case where the prior “removal was subsequent to a
conviction for commission of an aggravated felony,” the maximum period of
confinement is twenty years. 8 U.S.C. § 1326(b)(2). The district court recognized
Petitioner’s prior conviction and adjudged a forty-six month period of
confinement. Petitioner argues that the court should not have considered
Petitioner’s prior conviction at sentencing because it was not alleged in the
indictment nor proven at trial beyond a reasonable doubt.
The Supreme Court has held that a prior conviction under § 1326(b) is a
“sentencing factor” and therefore need not be proven at trial. Almendarez-Torres v.
United States, 523 U.S. 224, 241 (1998). Petitioner’s argument that the Alleyne
case effectively overruled Almendarez-Torres is contradicted by the Alleyne
opinion itself. See Alleyne, 133 S. Ct. at 2160 n.1 (“In Almendarez–Torres we
recognized a narrow exception to this general rule for the fact of a prior conviction.
Because the parties do not contest that decision’s vitality, we do not revisit it for
purposes of our decision today.”) (citation omitted). As this court has made clear,
“Almendarez–Torres is binding unless it is expressly overruled by the Supreme
Court.” United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per
curium). We AFFIRM.
United States v. Raul Mendez-Bello
Combined Opinion