                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 08 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50329

              Plaintiff - Appellee,              D.C. No. 3:15-cr-01103-LAB-1

 v.
                                                 MEMORANDUM*
VICTOR MANUEL CASTANEDA-
MONTES,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                        Argued and Submitted May 4, 2016
                              Pasadena, California

Before: W. FLETCHER and GOULD, Circuit Judges and LEMELLE,** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.
      Victor Manuel Castaneda-Montes (“Castaneda”) challenges his sentence of

69 months following a conviction for attempted reentry into the United States

following deportation, 8 U.S.C. § 1326(a). We affirm.

      The district court did not plainly err in applying a 16-level crime of violence

enhancement. U.S.S.G. § 2L1.2(b)(1)(A)(ii). Castaneda argues for the first time on

appeal that his conviction for violating a restraining order with an act of violence

or a credible threat of violence is not categorically a crime of violence. But he has

not cited any case in which state courts have applied this statute to conduct that

does not rise to the federal definition of a crime of violence, and he has not

otherwise shown a “realistic probability” that the statute would be applied

overbroadly. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). The

district court’s application of the enhancement was thus not plain error.

      Castaneda also argues that the sentencing scheme under 8 U.S.C. § 1326

violates the Sixth Amendment. However, the Supreme Court has held otherwise.

See Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). And we have

previously rejected the argument that this part of Almendarez-Torres was

implicitly overruled by subsequent Supreme Court precedent. See United States v.

Maciel-Vasquez, 458 F.3d 994, 995–96 (9th Cir. 2006).

      AFFIRMED.
