United States of America v. Nicandro Castaneda- Guardiola

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICANDRO CASTANEDA-
GUARDIOLA,
Defendant - Appellant.
No. 14-50244
D.C. No. 3:14-cr-00928-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
Nicandro Castaneda-Guardiola appeals from the district court’s judgment
and challenges the 37-month sentence imposed following his bench-trial
conviction for attempted reentry of a removed alien, in violation of 8 U.S.C.
FILED
MAR 17 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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§ 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Castaneda-Guardiola contends that his sentence should not have exceed two
years because the fact of the prior conviction that subjected him to enhanced
penalties under section 1326(b) was neither alleged in the indictment nor proven
beyond a reasonable doubt. The Supreme Court rejected this argument in
Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998). Castaneda-
Guardiola’s contention that Almendarez-Torres has been overruled is incorrect.
See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (declining to revisit
holding in Almendarez-Torres).
AFFIRMED.
14-50244 2

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