United States of America v. AGUSTIN ACOSTA-MAGALLANES, AKA Julian Acosta-Padilla

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AGUSTIN ACOSTA-MAGALLANES,
AKA Julian Acosta-Padilla,
Defendant-Appellant.
No. 15-10415
D.C. No.
4:15-cr-00249-RM-EJM-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Rosemary Marquez, District Judge, Presiding
Submitted November 16, 2016**
San Francisco, California
Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.
Agustin Acosta-Magallanes challenges the 48-month custodial sentence and
2-year term of supervised release imposed by the district court after his guilty-plea
conviction for being found in the United States following deportation, in violation
FILED
NOV 21 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 Ninth Circuit Rule 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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of 8 U.S.C. § 1326, as enhanced by § 1326(b)(2). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
Acosta-Magallanes contends that the district court abused its discretion in
imposing non-individualized, contradictory supervised release conditions as he
likely will not be in the country to follow the supervised release requirements. A
court “ordinarily should not impose a term of supervised release in a case in which
supervised release is not required by statute and the defendant is a deportable alien
who likely will be deported after imprisonment.” U.S.S.G. § 5D1.1(c). District
courts, however, have discretion to impose supervised release in cases where added
deterrence is needed. See United States v. Valdavinos-Torres, 704 F.3d 679, 693
(9th Cir. 2012); see also U.S.S.G. § 5D1.1, cmt. n.5. A district court imposing a
term of supervised release for a deportable alien must articulate “a specific and
particularized explanation that supervised release would provide an added measure
of deterrence and protection based on the facts of [the defendant’s] case.”
Valdavinos-Torres, 704 F.3d at 693. Here, the district court gave an adequate and
reasoned basis for sentencing Acosta-Magallanes to supervised release. After
considering his past history, the court found that supervised release would deter
Acosta-Magallanes from returning to the United States. At sentencing, the district
court also said that the terms of supervised release would apply only if Acosta-
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Magallanes returned to the United States. In our view, the district court acted
within its proper discretion by imposing a term of supervised release in the
circumstances presented.
Acosta-Magallanes also argues that 8 U.S.C. § 1326(b) is unconstitutional,
and as a result, his sentence cannot be more than two years. This court has
repeatedly rejected this argument, and we are bound to follow the United States
Supreme Court’s precedent in Almendarez-Torres v. United States, 523 U.S. 224
(1998), until it is overruled by the Supreme Court. See United States v.
Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per curiam); United States v.
Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). We will not engage in anticipatory
overruling of a Supreme Court precedent and consider appellant’s argument on this
issue as a way to preserve the issue should the Supreme Court change its law.
AFFIRMED.
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