                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 29 2011

                                                                        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. 10-50449

              Plaintiff - Appellee,              D.C. No. 3:09-cr-03593-MMA-1

  v.
                                                 MEMORANDUM *
JOSE OSORIO-REYES,

              Defendant - Appellant.



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

                                                          **
                         Submitted September 27, 2011


Before: HAWKINS, SILVERMAN and W. FLETCHER, Circuit Judges.

       Jose Osorio-Reyes appeals the sentence imposed following his guilty plea to

attempted entry after deportation in violation of 8 U.S.C. § 1326. Osorio-Reyes

contends that the district court erred by applying 8 U.S.C. § 1326(b) to enhance his


        *
             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).
sentence. Specifically, he argues that Almendarez–Torres v. United States, 523

U.S. 224 (1998), which permits enhancement based on the existence of a prior

felony, has been overruled by Nijhawan v. Holder, 129 S. Ct. 2294 (2009), and

United States v. O’Brien, 130 S. Ct. 2169 (2010), so that his prior felony

conviction must be either admitted or proved to a jury beyond a reasonable doubt.

The district court did not err by treating Osorio-Reyes’ prior felony conviction as a

sentencing enhancement and increasing his statutory maximum sentence. See

United States v. Valdovinos–Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011) (holding

that Almendarez–Torres has not been overruled by Nijhawan and continues to

constitute binding authority); United States v. Grajeda, 581 F.3d 1186, 1197 (9th

Cir. 2009) (holding that Almendarez–Torres is binding unless it is expressly

overruled by the Supreme Court).

      AFFIRMED.
