FILED
NOT FOR PUBLICATION
FEB 07 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
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.
Raul Mendez-Bello (Defendant) claims that the admission at trial of his
attorney’s previous statement 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. Defendant also claims that its introduction infringed on his
Sixth Amendment rights to conflict-free counsel and confront witnesses. He
further contends that he was sentenced in violation of the statutory maximum. We
affirm.
At trial there was no dispute that Defendant was not a citizen of the United
States or that he entered the country without authorization. The only contested
issue was whether Defendant entered the country with the intent to be free from
official restraint, as required by United States v. Lombrera-Valdovinos, 429 F.3d
927 (9th Cir. 2005).
1. Defendant 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, Defendant briefly noted that he had not been in contact with his family
in the United States for over a decade. The prosecution cross-examined Defendant
using his attorney’s 2013 sentencing statement which claimed that, on that
occasion, Defendant entered the United States in an attempt to see his common-law
wife and children. 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
Defendant, focused on the circumstances under which Defendant crossed the
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border and his apprehension. Taking into account the facts as presented to the jury,
we hold that any evidentiary errors were 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”).
2. Defendant claims that his Sixth Amendment right to conflict-free counsel
was violated because his trial attorney was also his attorney for the previous
sentencing hearing. Thus, Defendant argues, his attorney was placed in the
untenable position of, among other things, deciding whether to attack his own
statement and risk his professional reputation, which would be in the Defendant’s
best interest.
But to succeed on his conflict-of-counsel theory, Defendant had to “prove
actual conflict, not just a possibility of conflict, ‘through a factual showing on the
record.’” United States v. Moore, 159 F.3d 1154, 1157 (9th Cir. 1998) (citation
omitted); see also United States v. Wells, 394 F.3d 725, 733 (9th Cir. 2005)
(“Under this standard, an ‘“actual conflict”’ is ‘a conflict that affected counsel’s
performance—as opposed to a mere theoretical division of loyalties.’” (citation
omitted)). The record goes no further than establishing a possibility of conflict of
interest because their interests need not have diverged unless the attorney’s
statement was false, and Defendant has not contended that it was. Defendant’s
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claim fails. See Moore, 159 F.3d at 1157 (noting that if there is only a possibility
of conflict, the defendant is required to meet the standards of Strickland v.
Washington, 466 U.S. 668 (1984)).
3. Defendant additionally claims that the introduction of the statement
violated his Sixth Amendment rights under the Confrontation Clause. Defendant
forfeited this argument because he did not raise it below, but we exercise our
discretion to review for plain error anyway. The requirements of plain error review
are not met because any error was not “clear or obvious, rather than subject to
reasonable dispute.” United States v. Anekwu, 695 F.3d 967, 973 (9th Cir. 2012).
4. Defendant 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 Defendant’s claim de novo.
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
Defendant’s prior conviction and adjudged a forty-six month period of
confinement. Defendant argues that the court should not have considered
Defendant’s prior conviction at sentencing because it was not alleged in the
indictment nor proven at trial beyond a reasonable doubt.
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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). Defendant’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 we have 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
curiam).
AFFIRMED.
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