United States of America v. Geyen Avila-Correa

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEYEN AVILA-CORREA,
Defendant - Appellant.
No. 14-50436
D.C. No. 3:14-cr-00172-DMS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted October 14, 2015**
Before: SILVERMAN, BYBEE, and WATFORD, Circuit Judges.
Geyen Avila-Correa appeals from the district court’s judgment and
challenges the 63-month sentence imposed following his guilty-plea conviction for
being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.
We dismiss.
FILED
OCT 19 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Avila-Correa contends that his sentence is illegal because the fact of his
prior felony conviction, which increased the statutory maximum sentence, was not
charged in the information. The government argues that this appeal should be
dismissed based on an appeal waiver contained in the parties’ plea agreement. We
review de novo whether to enforce an appeal waiver. See United States v. Watson,
582 F.3d 974, 981 (9th Cir. 2009). Contrary to Avila-Correa’s contention, the
Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224
(1998), remains binding. 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) (per curiam) (“We have repeatedly held . . . that
Almendarez-Torres is binding unless it is expressly overruled by the Supreme
Court.”). Accordingly, Avila-Correa’s sentence is not illegal, and we dismiss this
appeal in light of the valid appeal waiver. See Watson, 582 F.3d at 988.
DISMISSED.
14-50436 2

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