United States of America v. Armando Gomez-Hernandez, a.k.a. Carlos Atondo, a.k.a. Mario Gomez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARMANDO GOMEZ-HERNANDEZ,
a.k.a. Carlos Atondo, a.k.a. Mario Gomez,
Defendant - Appellant.
No. 15-30264
D.C. No. 9:15-cr-00005-DLC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Submitted June 14, 2016**
Before: BEA, WATFORD, and FRIEDLAND, Circuit Judges.
Armando Gomez-Hernandez appeals from the district court’s judgment and
challenges the 24-month sentence imposed following his guilty-plea conviction for
illegal reentry in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28
FILED
JUN 20 2016
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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U.S.C. § 1291, and we affirm, but remand to correct the judgment.
Gomez-Hernandez contends that the district court violated the Sixth
Amendment by increasing the statutory maximum sentence for his offense on the
basis of a prior felony conviction that was not admitted by him or found by a jury.
As Gomez-Hernandez concedes, this argument is foreclosed by the Supreme
Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (“We have
repeatedly held . . . that Almendarez-Torres is binding unless it is expressly
overruled by the Supreme Court.”).
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062
(9th Cir. 2000), we remand this case to the district court with instructions that it
delete from the judgment the reference to § 1326(b)(1). See United States v.
Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to
delete the reference to § 1326(b)).
AFFIRMED; REMANDED to correct the judgment.
15-30264 2

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