                                                                           FILED
                           NOT FOR PUBLICATION                             APR 11 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30225

              Plaintiff - Appellee,              D.C. No. 6:13-cr-00002-DLC

  v.
                                                 MEMORANDUM*
RONALD JAY MILLER,

              Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Dana L. Christensen, Chief Judge, Presiding

                             Submitted April 7, 2014**

Before:      TASHIMA, GRABER, and IKUTA, Circuit Judges.

       Ronald Jay Miller appeals from the district court’s judgment and challenges

the 120-month sentence imposed following his guilty-plea conviction for accessing

with intent to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       *
             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).
      Miller contends that the district court erred by concluding that his prior

conviction for sexual assault, in violation of Mont. Code Ann. § 45-5-502, was an

offense “relating to aggravated sexual abuse, sexual abuse, or abusive sexual

conduct involving a minor or ward,” triggering a 10-year statutory mandatory

minimum sentence. See 18 U.S.C. § 2252A(b)(2). This contention is foreclosed

by United States v. Sinerius, 504 F.3d 737, 744 (9th Cir. 2007). We reject Miller’s

argument that the rule of lenity, as recently described by the Supreme Court,

requires us to overrule Sinerius. See Barber v. Thomas, 560 U.S. 474, 488 (2010)

(rule of lenity “only applies if, after considering text, structure, history, and

purpose, there remains a grievous ambiguity or uncertainty in the statute”) (internal

quotations omitted); see also Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir.

2003) (en banc) (three-judge panel is bound by circuit precedent unless that

precedent is “clearly irreconcilable” with intervening higher authority).

      Further, contrary to Miller’s contention, the existence of a prior conviction is

a sentencing factor, not an element of the crime; therefore, it need not be charged

in the indictment or found by the jury. See Almendarez-Torres v. United States,

523 U.S. 224, 235, 241 (1998); see also Alleyne v. United States, 133 S. Ct. 2151,

2160 n.1 (2013) (declining to revisit Almendarez-Torres).

      AFFIRMED.


                                            2                                       13-30225
