                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               APR 15 2010

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

UNITED STATES OF AMERICA,                        No. 09-50066

             Plaintiff - Appellee,               D.C. No. 8:07-cr-00275-JVS-1

  v.
                                                 MEMORANDUM *
FERNANDO ALBERTO VELASQUEZ-
BOSQUE,

             Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                               Argued March 2, 2010
                              Submitted April 8, 2010
                                Pasadena, California

Before: CANBY, GOULD and IKUTA, Circuit Judges.


       Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010) (order), held that

carjacking under California Penal Code section 215 is a categorical crime of

violence under 18 U.S.C. § 16. Id. at 1058. Nothing in Johnson v. United States,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
130 S. Ct. 1265 (2010), is irreconcilable with Nieves-Medrano, and therefore this

court has no authority to disregard Nieves-Medrano. See Miller v. Gammie, 335

F.3d 889, 900 (9th Cir. 2003) (en banc). Velasquez-Bosque’s challenge to his

conviction under 8 U.S.C. § 1326(b)(2) fails.

      As the government concedes, the district court erred in admitting the Wilson

Declaration at trial, because such admission was in violation of the Confrontation

Clause. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009).

However, because the declaration was cumulative of Agent Johnston’s testimony,

that testimony was tested through extensive cross-examination, and there was no

evidence to contradict the element for which the declaration was offered, we hold

that the error was harmless beyond a reasonable doubt. See United States v.

Larson, 495 F.3d 1094, 1107–1108 (9th Cir. 2007) (en banc). Even though Agent

Johnston’s testimony did not precisely track the language of 8 U.S.C. § 1326, it

was sufficient to constitute evidence of the Attorney General’s lack of consent to

the “alien’s reapplying for admission.” See United States v. Cervantes-Flores, 421

F.3d 825, 834 (9th Cir. 2005) (per curiam).

      Last, Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998),

forecloses Velasquez-Bosque’s challenge to the constitutionality of § 1326(b),

including the claim that Nijhawan v. Holder, 129 S. Ct. 2294 (2009), “softened”

Almendarez-Torres’s holding. Almendarez-Torres has never been expressly
overruled and continues to constitute binding precedent. See, e.g., United States v.

Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir. 2009) (per curiam); United States

v. Martinez-Rodriguez, 472 F.3d 1087, 1093 (9th Cir. 2007).1

      AFFIRMED.




      1
        We address the government’s cross-appeal in a separate opinion filed
concurrently with this memorandum disposition.
