                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           DEC 02 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 15-50239

              Plaintiff - Appellee,              D.C. No. 3:14-cr-3459-BTM-1

 v.
                                                 MEMORANDUM*
RAUL MENDEZ-BELLO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Barry T. Moskowitz, District Judge, Presiding

                     Argued and Submitted November 9, 2016
                              Pasadena, California

Before: BYBEE and SCHROEDER, Circuit Judges and SMITH,** Chief District
Judge.

      1. Raul Mendez-Bello (Petitioner) claims that the admission at trial of his

attorney’s previous statements violated the notice requirements of Rule 404(b) of

the Federal Rules of Evidence and Rule 16(a)(1)(B)(I) of the Federal Rules of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
Criminal Procedure, and infringed on his Sixth Amendment rights to conflict-free

counsel and confront witnesses. Because admission of the attorney statement did

not affect the verdict, we AFFIRM.

      At trial there was no dispute that Petitioner was not a citizen of the United

States and had entered the country without authorization. The only contested issue

was whether Petitioner entered the country with the intent to be free from official

restraint. The evidence showed that Petitioner was caught crossing the border in an

area where “you can hide really eas[il]y” because it is “desolate,” filled with

boulders, tumbleweeds, and brush. Petitioner was seen running across a road into

“really heavy brush” where Petitioner then “stopped and ducked down.” Since this

crossing was done during the night, Border Patrol agents had to search for several

minutes with flashlights to find Petitioner. One of the agents eventually found

Petitioner laying on the ground and concealing himself in tumbleweeds. All of this

evidence suggests that Petitioner was not trying to get caught, but instead trying to

successfully enter the country undetected.

      Petitioner testified and maintained that he was entering the United States

with the intention of being caught in order to gain food and shelter. As evidence of

this intent, Petitioner briefly noted that he had not been in contact with his family

in the United States for over a decade. The prosecution cross-examined Petitioner

using his attorney’s previous sentencing statement which called Petitioner’s lack of
familial contact into question. However, this short line of questioning was by no

means the centerpiece of the prosecution’s case; indeed, it was little more than a

footnote. All of the prosecution’s case-in-chief, and nearly all of the cross-

examination of Petitioner, focused on the circumstances under which Petitioner

crossed the border and his apprehension.

      Similarly, during closing argument, the prosecution never mentioned

Petitioner’s relationship with his family or the attorney statement, and defense

counsel only mentioned Petitioner’s familial relationship very briefly. Instead, both

parties focused on the facts surrounding Petitioner’s unlawful entry (i.e., whether

he ran, was hiding, etc.), which overwhelmingly suggested that Petitioner entered

the United States and attempted to evade capture. The only evidence to the

contrary was Petitioner’s own testimony, which the jury could understandably have

discounted as self-serving. Any error, therefore, was harmless. See United States v.

Vega, 188 F.3d 1150, 1153-54 (9th Cir. 1999) (noting that an error is harmless if

“it is more probable than not that the error did not materially affect the verdict”).

Accordingly, the conviction is AFFIRMED.

      2. Petitioner argues that the district court ignored Alleyne v. United States,

133 S. Ct. 2151 (2013) and sentenced him beyond the statutory maximum period

of confinement. We review Petitioner’s claim de novo and AFFIRM.
      In an illegal reentry case where the prior “removal was subsequent to a

conviction for commission of an aggravated felony,” the maximum period of

confinement is twenty years. 8 U.S.C. § 1326(b)(2). The district court recognized

Petitioner’s prior conviction and adjudged a forty-six month period of

confinement. Petitioner argues that the court should not have considered

Petitioner’s prior conviction at sentencing because it was not alleged in the

indictment nor proven at trial beyond a reasonable doubt.

      The Supreme Court has held that a prior conviction under § 1326(b) is a

“sentencing factor” and therefore need not be proven at trial. Almendarez-Torres v.

United States, 523 U.S. 224, 241 (1998). Petitioner’s argument that the Alleyne

case effectively overruled Almendarez-Torres is contradicted by the Alleyne

opinion itself. See Alleyne, 133 S. Ct. at 2160 n.1 (“In Almendarez–Torres we

recognized a narrow exception to this general rule for the fact of a prior conviction.

Because the parties do not contest that decision’s vitality, we do not revisit it for

purposes of our decision today.”) (citation omitted). As this court has made clear,

“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

curium). We AFFIRM.
