                                                                            FILED
                            NOT FOR PUBLICATION                               JAN 28 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 14-50578
                                                      14-50579
               Plaintiff - Appellee,
                                                 D.C. Nos.    3:14-cr-01376-LAB;
 v.                                                           3:14-cr-07133-LAB

SAUL RIVAS-HERNANDEZ, a.k.a.
Edgar Diaz, a.k.a. Jose Diaz, a.k.a. Jose        MEMORANDUM*
Hernandez, a.k.a. Saul Rivas Hernandez,
a.k.a. Saul Rivas,

               Defendant - Appellant.


                    Appeals from the United States District Court
                       for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                            Submitted January 20, 2016**

Before:        CANBY, TASHIMA, and NGUYEN, Circuit Judges.

      In these consolidated appeals, Saul Rivas-Hernandez appeals the 33-month

custodial sentence imposed following his bench-trial conviction for being a


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removed alien found in the United States, in violation of 8 U.S.C. § 1326, and the

2-year term of supervised release imposed upon revocation of supervised release.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Rivas-Hernandez contends that the sentence for his unlawful reentry

conviction violates the Sixth Amendment, as the fact of the prior conviction that

subjected him to a higher statutory maximum under section 1326(b) was not

admitted by him or proven to a jury. Contrary to Rivas-Hernandez’s contention,

the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224

(1998), continues to bind this court. See Alleyne v. United States, 133 S. Ct. 2151,

2160, n.1 (2013) (declining to revisit holding in Almendarez-Torres).

      Rivas-Hernandez also argues that the custodial sentence imposed for his

unlawful reentry conviction, and the term of supervised release imposed for his

violation of supervised release, are substantively unreasonable in light of his

history and circumstances. The district court did not abuse its discretion. See Gall

v. United States, 552 U.S. 38, 51 (2007). Both the custodial sentence and the term

of supervised release are substantively reasonable in light of the relevant

sentencing factors and the totality of the circumstances. See id.; United States v.

Castro-Verdugo, 750 F.3d 1065, 1072 (9th Cir. 2014).

      AFFIRMED.


                                           2                          14-50578 & 14-50579
