United States v. Joel Guerrero-Almodovar , 693 F. App'x 546 ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        JUL 3 2017
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       Nos. 15-50370
    15-50372
    Plaintiff-Appellee,
    D.C. Nos. 3:09-cr-03915-DMS
    v.                                                      3:15-cr-00234-DMS
    JOEL ARNOLDO GUERRERO-                          MEMORANDUM*
    ALMODOVAR, a.k.a. Joel Guerrero-
    Almodovar,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    Dana M. Sabraw, District Judge, Presiding
    Submitted June 26, 2017**
    Before:       PAEZ, BEA, and MURGUIA, Circuit Judges.
    In these consolidated appeals, Joel Arnoldo Guerrero-Almodovar challenges
    the 63-month sentence imposed following his guilty-plea conviction for attempted
    reentry of a removed alien, in violation of 8 U.S.C. § 1326, and the 12-month-and-
    *
    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).
    one-day consecutive sentence imposed upon revocation of supervised release. We
    have jurisdiction under 28 U.S.C. § 1291, and we affirm.
    Guerrero-Almodovar contends that the district court erred in applying a 16-
    level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014) because his prior
    conviction under California Penal Code § 211 is not a crime of violence. This
    claim is foreclosed. See United States v. Becerril-Lopez, 
    541 F.3d 881
    , 893 & n.10
    (9th Cir. 2008) (robbery conviction under California Penal Code § 211 is
    categorically a crime of violence). Contrary to Guerrero-Almodovar’s assertion,
    Descamps v. United States, 
    133 S. Ct. 2276
    (2013), which concerns the modified
    categorical approach, does not allow us to disregard Becerril-Lopez. See Miller v.
    Gammie, 
    335 F.3d 889
    , 893 (9th Cir. 2003) (en banc) (three-judge panel is bound
    by circuit precedent unless that precedent is “clearly irreconcilable” with the
    reasoning of an intervening higher authority).
    Guerrero-Almodovar 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 a jury. As he concedes, this claim is foreclosed by
    Almendarez-Torres v. United States, 
    523 U.S. 224
    (1998), which continues to bind
    this Court. See United States v. Leyva-Martinez, 
    632 F.3d 568
    , 569 (9th Cir. 2011)
    2                          15-50370 & 15-50372
    (order) (“We have repeatedly held . . . that Almendarez-Torres is binding unless it
    is expressly overruled by the Supreme Court.”).
    Finally, Guerrero-Almodovar argues that the district court denied him his
    right of allocution before sentencing him on his violation of supervised release.
    The record belies this claim. During a consolidated hearing, the court invited
    Guerrero-Almodovar to speak before imposing sentence on his new conviction for
    illegal reentry and his violation of supervised release. Thus, Guerrero-Almodovar
    was given “an opportunity to make a statement and present any information in
    mitigation,” Fed. R. Crim. P. 32.1(b)(2)(E), before the sentence was imposed. See
    United States v. Allen, 
    157 F.3d 661
    , 666 (9th Cir. 1998).
    AFFIRMED.
    3                          15-50370 & 15-50372