United States v. Jose Martinez-Aguayo , 671 F. App'x 587 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10491
Plaintiff-Appellee, D.C. No. 4:15-cr-00559-JGZ
v.
MEMORANDUM*
JOSE MANUEL MARTINEZ-AGUAYO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Jose Manuel Martinez-Aguayo appeals from the district court’s judgment
and challenges the 21-month sentence imposed following his guilty-plea
conviction for 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 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).
Martinez-Aguayo challenges his sentence on double jeopardy and collateral
estoppel grounds. Specifically, he claims that, because a magistrate judge in the
District of Arizona previously determined that there was not probable cause to
remove him to the Western District of Michigan for a violation of supervised
release, the district court was precluded from using the underlying prior conviction
in the Western District of Michigan to calculate his criminal history score. We
review de novo claims of double jeopardy and collateral estoppel. See United
States v. Castillo-Basa, 483 F.3d 890, 895 (9th Cir. 2007). Contrary to Martinez-
Aguayo’s contention, the district court correctly determined that the magistrate
judge’s findings at the probable cause hearing did not have preclusive effect under
the Double Jeopardy Clause. See United States ex rel. Rutz v. Levy, 268 U.S. 390,
393 (1925) (removal proceedings do “not operate to put the defendant in
jeopardy”); United States v. Stoltz, 720 F.3d 1127, 1131 (9th Cir. 2013) (principles
of double jeopardy “are not implicated” before the point at which jeopardy
attaches). Martinez-Aguayo’s claim of collateral estoppel is equally unpersuasive.
See Ashe v. Swenson, 397 U.S. 436, 444 (1970).
AFFIRMED.
2 15-10491