United States v. Garcia-Alcazar

MEMORANDUM ** Gonzalo Garcia-Alcazar appeals from his conviction by bench trial and the 100-month sentence imposed for attempted entry after deportation in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Garcia-Alcazar contends that his due process rights were violated by the government’s loss of potentially exculpatory evidence prior to trial. Because he has demonstrated neither prejudice to his defense nor bad faith on the part of the government, he cannot prevail on this claim. See United States v. Bring, 930 F.2d 687, 693-94 (9th Cir.1991). Garcia-Alcazar also contends that his constitutional rights were violated by the use of a prior conviction to enhance his sentence because he did not admit to the prior conviction and it was not proven to a jury beyond a reasonable doubt. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998). See also United States v. Weiland, 420 F.3d 1062, 1079, n. 16 (9th Cir.2005) (noting that *551 Almendarez-Torres is binding precedent unless and until it is explicitly overruled by the Supreme Court). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.