United States v. Brian Barker

MEMORANDUM

Brian Edward Barker was found guilty of distribution of methamphetamine, in violation of 21 U.S.C. §§ 841 (a)(1) and 846, and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841 (a)(1) and 846, and sentenced to a term of life imprisonment. After a successful 28 U.S.C. § 2255 motion, the district court resentenced Barker tó a term of 262 months’ imprisonment, to run consecutively to a prior undischarged term of imprisonment. Barker appeals his new sentence. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

1. Barker’s Sixth Amendment argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998). “We have repeatedly held ... that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court.” United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir.2011) (per curiam); see also United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir.2009). This the Supreme Court has not done. See Alleyne v. United States, — U.S. -, - n. 1, 133 S.Ct. 2151 , 2160 n. 1, 186 L.Ed.2d 314 (2013).

2. The law-of-the-case doctrine has no application here. When a district…