United States v. Castaneda-Guardiola

MEMORANDUM ** Nicandro Castaneda-Guardiola appeals from the district court’s judgment and challenges the 37-month sentence imposed following his bench-trial conviction for attempted 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. *502 Castaneda-Guardiola contends that his sentence should not have exceed two years because the fact of the prior conviction that subjected him to enhanced penalties under section 1326(b) was neither alleged in the indictment nor proven beyond a reasonable doubt. The Supreme Court rejected this argument in Almendarez-Torres v. United States, 523 U.S. 224, 239-47 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998). Castaneda-Guardiola’s contention that Almendarez-Torres has been overruled is incorrect. See Alleyne v. United States, — U.S. —, n. 1, 133 S.Ct. 2151 , 2160 n. 1, 186 L.Ed.2d 314 (2013) (declining to revisit holding in Almendarez-Torres). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.