Opinion
No. 10-50449 D.C. No. 3:09-cr-03593-MMA-1
09-29-2011
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE OSORIO-REYES, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Before: HAWKINS, SILVERMAN and W. FLETCHER, Circuit Judges.
Jose Osorio-Reyes appeals the sentence imposed following his guilty plea to attempted entry after deportation in violation of 8 U.S.C. § 1326. Osorio-Reyes contends that the district court erred by applying 8 U.S.C. § 1326(b) to enhance his sentence. 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, has been overruled by Nijhawan v. Holder, 129 S. Ct. 2294 (2009), and United States v. O'Brien, 130 S. Ct. 2169 (2010), so that his prior felony conviction must be either admitted or proved to a jury beyond a reasonable doubt. The district court did not err by treating Osorio-Reyes' prior felony conviction as a sentencing enhancement and increasing his statutory maximum sentence. See United States v. Valdovinos-Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011) (holding that Almendarez-Torres has not been overruled by Nijhawan and continues to constitute binding authority); United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (holding that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court).
AFFIRMED.