                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 07 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


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.

      Raul Mendez-Bello (Defendant) claims that the admission at trial of his

attorney’s previous statement 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. Defendant also claims that its introduction infringed on his

Sixth Amendment rights to conflict-free counsel and confront witnesses. He

further contends that he was sentenced in violation of the statutory maximum. We

affirm.

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

States or that he entered the country without authorization. The only contested

issue was whether Defendant entered the country with the intent to be free from

official restraint, as required by United States v. Lombrera-Valdovinos, 429 F.3d

927 (9th Cir. 2005).

      1. Defendant 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, Defendant briefly noted that he had not been in contact with his family

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

using his attorney’s 2013 sentencing statement which claimed that, on that

occasion, Defendant entered the United States in an attempt to see his common-law

wife and children. 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

Defendant, focused on the circumstances under which Defendant crossed the


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border and his apprehension. Taking into account the facts as presented to the jury,

we hold that any evidentiary errors were 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”).

       2. Defendant claims that his Sixth Amendment right to conflict-free counsel

was violated because his trial attorney was also his attorney for the previous

sentencing hearing. Thus, Defendant argues, his attorney was placed in the

untenable position of, among other things, deciding whether to attack his own

statement and risk his professional reputation, which would be in the Defendant’s

best interest.

       But to succeed on his conflict-of-counsel theory, Defendant had to “prove

actual conflict, not just a possibility of conflict, ‘through a factual showing on the

record.’” United States v. Moore, 159 F.3d 1154, 1157 (9th Cir. 1998) (citation

omitted); see also United States v. Wells, 394 F.3d 725, 733 (9th Cir. 2005)

(“Under this standard, an ‘“actual conflict”’ is ‘a conflict that affected counsel’s

performance—as opposed to a mere theoretical division of loyalties.’” (citation

omitted)). The record goes no further than establishing a possibility of conflict of

interest because their interests need not have diverged unless the attorney’s

statement was false, and Defendant has not contended that it was. Defendant’s


                                           3
claim fails. See Moore, 159 F.3d at 1157 (noting that if there is only a possibility

of conflict, the defendant is required to meet the standards of Strickland v.

Washington, 466 U.S. 668 (1984)).

      3. Defendant additionally claims that the introduction of the statement

violated his Sixth Amendment rights under the Confrontation Clause. Defendant

forfeited this argument because he did not raise it below, but we exercise our

discretion to review for plain error anyway. The requirements of plain error review

are not met because any error was not “clear or obvious, rather than subject to

reasonable dispute.” United States v. Anekwu, 695 F.3d 967, 973 (9th Cir. 2012).

      4. Defendant 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 Defendant’s claim de novo.

      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

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

confinement. Defendant argues that the court should not have considered

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

indictment nor proven at trial beyond a reasonable doubt.


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      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). Defendant’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 we have 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

curiam).

      AFFIRMED.




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