                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 14 2010

                                                                        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. 09-50313

               Plaintiff - Appellee,             D.C. No. 3:08-CR-03690-DMS

  v.
                                                 MEMORANDUM *
FRANCISCO JAVIER GARCIA-
MANZO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Francisco Javier Garcia-Manzo appeals from the 70-month sentence

imposed following his guilty-plea conviction for attempted entry after deportation,

in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and


          *
             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).
we affirm.

      Garcia-Manzo contends that the district court procedurally erred by failing

to address his policy challenge to the enhancements that apply under U.S.S.G.

§ 2L1.2(b)(1)(A). The record reflects that the district court responded to Garcia-

Manzo’s argument and therefore did not procedurally err. See United States v.

Carty, 520 F.3d 884, 992-93 (9th Cir. 2008) (en banc).

      Garcia-Manzo also contends that Almendarez-Torres v. United States, 523

U.S. 224 (1998), should be overruled. As Garcia-Manzo recognizes, this

contention is foreclosed. See United States v. Grajeda, 581 F.3d 1186, 1197 (9th

Cir. 2009) (recognizing that although the continuing viability of Almendarez-

Torres has been called into question, this court is bound to follow controlling

Supreme Court precedent).

      AFFIRMED.




                                          2                                       09-50313
