United States v. Juan Martinez-Gomez , 668 F. App'x 246 ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50427
Plaintiff-Appellee, D.C. No.
3:14-cr-00848-MMA-1
v.
JUAN MARTINEZ-GOMEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted August 4, 2016
Pasadena, California
Before: REINHARDT, KOZINSKI, and WARDLAW, Circuit Judges.
Juan Martinez-Gomez appeals the sentence imposed after he pled guilty to
one count of illegal reentry in violation of 8 U.S.C. § 1326. Applying our decision
in United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009), the district court
determined that Martinez-Gomez’s prior conviction for assault with a deadly
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
weapon in violation of California Penal Code § 245 qualified as a “crime of
violence” within the meaning of United States Sentencing Guideline § 2L1.2 and
therefore applied a 16-level upward adjustment. After calculating the Guidelines
range as 37 to 46 months, the district court sentenced Martinez-Gomez to 37
months. We have jurisdiction pursuant to 8 U.S.C. §1291, and we affirm.
1. The Supreme Court’s decisions in Descamps v. United States, 133 S. Ct.
2276 (2013) and Mathis v. United States, 136 S. Ct. 2243 (2016) are not “clearly
irreconcilable” with our decision in United States v. Grajeda, 581 F.3d 1186 (9th
Cir. 2009). Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003). In Grajeda, we
applied the elements-based categorical approach the Supreme Court established in
Taylor v. United States, 495 U.S. 575 (1990), and concluded that California Penal
Code § 245 is “categorically a crime of violence.” Grajeda, 581 F.3d at 1197.
Neither Descamps nor Mathis altered Taylor’s holding setting forth the pure
categorical approach; rather, those decisions clarified when the modified
categorical approach applies. See Mathis, 136 S. Ct. at 2251–54; Descamps, 133
S. Ct. at 2283–86. Because Grajeda—like this case—involves only the pure
categorical approach, it remains good law. See Grajeda, 581 F.3d at 1189.
2. The Supreme Court’s holding that a prior conviction is not an element of
a subsequent offense that must be found by a jury beyond a reasonable doubt, see
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Almendarez-Torres v. United States, 523 U.S. 224, 239–47 (1998), was not
overruled sub silentio by its decision in Alleyne v. United States, 133 S. Ct. 2151(2013). To the contrary, the Alleyne Court explained that Almendarez-Torres
“recognized a narrow exception to th[e] general rule” that “any facts that increase
the prescribed range of penalties to which a criminal defendant is exposed are
elements of the crime” that must be found by a jury. Alleyne, 133 S. Ct. at 2160 &
n.1 (citation omitted); see also Mathis, 136 S. Ct. at 2252 (“This Court has held
that only a jury, and not a judge, may find facts that increase a maximum penalty,
except for the simple fact of a prior conviction.”) (emphasis added); Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”)
(emphasis added). Almendarez-Torres, therefore, remains binding precedent.
AFFIRMED.
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