United States of America v. Julio Cesar Garcia-Rosas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JULIO CESAR GARCIA-ROSAS,
Defendant - Appellant.
No. 13-50482
D.C. No. 3:13-cr-00519-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
Julio Cesar Garcia-Rosas appeals from the district court’s judgment and
challenges the 48-month sentence imposed following his jury-trial conviction for
attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
* 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).
FILED
JUL 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 13-50482
Garcia-Rosas contends that the district court erred by using the Ninth Circuit
model jury instruction on reasonable doubt. This claim fails because this court
has repeatedly upheld the model instruction. See United States v.
Alcantara-Castillo, No. 12-50477, 2015 WL 3619853, at *10 n.4 (9th Cir. June 11,
2015).
Garcia-Rosas next contends that the district court violated the Sixth
Amendment by increasing his sentence on the basis of a prior felony conviction
that was not found by the jury. This argument fails. Contrary to Garcia-Rosas’s
contention, the Supreme Court’s holding in Almendarez-Torres v. United States,
523 U.S. 224 (1988), continues to bind this Court. 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.”).
AFFIRMED.

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