United States v. Jose Osorio-Reyes

MEMORANDUM

Jose Osorio-Reyes appeals the sentence imposed following his guilty plea to attempted entry after deportation in violation of 8 U.S.C. § 1326 . Osorio-Reyes contends that the district court erred by applying 8 U.S.C. § 1326 (b) to enhance his sentence. Specifically, he argues that Al-mendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), which permits enhancement based on the existence of a prior felony, has been overruled by Nijhawan v. Holder, 557 U.S. 29 , 129 S.Ct. 2294 , 174 L.Ed.2d 22 (2009), and United States v. O’Brien, —U.S. -, 130 S.Ct. 2169 , 176 L.Ed.2d 979 (2010), so that his prior felony conviction must be either admitted or proved to a jury beyond a reasonable doubt. The district court did not err by treating Osorio-Reyes’ prior felony conviction as a sentencing enhancement and increasing his statutory maximum sentence. See United States v. Valdovinos-Mendez, 641 F.3d 1031, 1036 (9th Cir.2011) (holding that Al-mendarez-Toms has not been overruled by Nijhawan and continues to constitute binding authority); United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir.2009) (holding that Almendarez-Torres is binding unless it is…