                                                                               FILED
                            NOT FOR PUBLICATION                                DEC 21 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10023

              Plaintiff - Appellee,              D.C. No. 3:10-cr-00053-LRH-
                                                 RAM-1
  v.

MIGUEL ALCALA-VALADEZ,                           MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                           Submitted December 8, 2011 **
                             San Francisco, California

Before: O’SCANNLAIN, COWEN,*** and BERZON, Circuit Judges.

       Defendant-Appellant Miguel Alcala-Valadez was convicted and sentenced

for the offense of attempting illegally to enter the United States following


        *
             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).
        ***
               The Honorable Robert E. Cowen, Senior Circuit Judge for the Third
Circuit, sitting by designation.
deportation, in violation of 8 U.S.C. § 1326. He appeals his sentence, arguing: (1)

that the district abused its discretion in imposing an upward variance from the

suggested Guidelines range; (2) that the court abused its discretion in rejecting his

request for a downward departure on the basis of his completed state sentence; and

(3) that the court violated his Fifth and Sixth Amendment rights when it increased

the statutory maximum sentence to which he was subject on the basis of its finding

that he was deported following conviction for a felony. We affirm.

      1. Alcala-Valadez argues that the district court’s decision to impose an

upward variance erroneously relied on the Presentence Investigation Report’s

(PSR) description of the offense conduct underlying his state narcotics conviction.

He concedes, however, that he did not contest the PSR’s factual statements before

the district court. The district court was therefore entitled to rely on the PSR’s

undisputed statements. See United States v. Ameline, 409 F.3d 1073, 1085 (9th

Cir. 2005) (en banc).

      Moreover, although Alcala-Valadez now purports to identify inconsistencies

in the PSR, he is mistaken. Contrary to his submission, the statute of conviction

listed in the PSR, Nev. Rev. Stat. § 453.3385, conforms to both the offense

conduct recited in the PSR (including the possession of methamphetamine) and the

suspended sentence he received as a result of his conviction. See Nev. Admin.


                                           2
Code § 453.510; Nev. Rev. Stat. § 176A.100(1)(C). The PSR therefore contained

no “indicia of unreliability.”

      2. Alcala-Valadez also agues that the district court abused its discretion in

denying his request for a downward departure pursuant to U.S.S.G. § 5K2.23.

Relying on United States v. Rivera-Gomez, 634 F.3d 507 (9th Cir. 2011), he

maintains that, because his incarceration for state gun and drug offenses led to his

identification by federal authorities, the conduct underlying those offenses

constitutes “relevant conduct” supporting a downward departure for his illegal

reentry offense. See U.S.S.G. §§ 5K2.23, 5G1.3(b), 1B1.3(a).

      Alcala-Valadez’s reliance on Rivera-Gomez is misplaced. Rivera-Gomez

held that resisting arrest could constitute relevant conduct for downward departure

purposes “if [the defendant] resisted arrest in order to ‘avoid detection or

responsibility’ for the illegal reentry offense.” 634 F.3d at 513. Because Alcala-

Valadez does not contend that his state gun and drug offenses were intended to

avoid detection or responsibility for his illegal reentry offense, Rivera-Gomez is

inapposite. Moreover, the sentence for Alcala-Valadez’s state drug conviction was

imposed after revocation of his probation for that offense. The district court’s

imposition of a consecutive sentence therefore complied with the Sentencing

Commission’s recommendation that sentences imposed after revocation of


                                           3
probation “run consecutively to any term of imprisonment imposed upon

revocation.” U.S.S.G. § 7B1.3, app. n.4.

      3. Finally, Alcala-Valadez maintains that he was entitled to a jury trial on

the issue of his prior felony conviction, and that the government was required to

prove the fact of his prior felony conviction beyond a reasonable doubt. He

concedes that these challenges are foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998), but argues that Almendarez-Torres has lost its vitality.

Almendarez-Torres, however, “continues to constitute binding authority.” United

States v. Valdovinos-Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011).

      AFFIRMED.




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