                                                                                      FILED
                               NOT FOR PUBLICATION                                     FEB 15 2011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. 09-50475

                Plaintiff - Appellee.,                  D.C. No. 3:08-cr-2266-H-1

   v.
                                                        MEMORANDUM *
 LIONEL VALENZUELA-CARRANZA,

              Defendants - Appellants.


                       Appeal from the United States District Court
                         for the Southern District of California
                        Marilyn L. Huff, District Judge, Presiding

                        Argued and Submitted November 2, 2010
                                 Pasadena, California

Before: SCHROEDER and TALLMAN, Circuit Judges, and JARVEY, District
Judge.**

        Lionel Valenzuela-Carranza appeals his jury conviction for attempting to

enter the United States without consent after being removed, in violation of 8


         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
               The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, sitting by designation.


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U.S.C. § 1326. He also challenges the reasonableness of his sentence.

      The evidence demonstrated that Valenzuela-Carranza had the requisite intent

required for a conviction under 8 U.S.C. § 1326 because he attempted to reenter at

the San Ysidro, California, Port of Entry without first obtaining the Attorney

General’s permission. 8 U.S.C. § 1326.

      The district court adequately considered and explained Valenzuela-

Carranza’s sentence. It heard arguments from the parties regarding a downward

variance from the Sentencing Guidelines range and explicitly considered the

factors in 18 U.S.C. § 3553(a). The Court stated that the sentence imposed was

sufficient but not greater than necessary to accomplish the goals of sentencing. See

Rita v. United States, 551 U.S. 338, 358 (2007). There is no heightened obligation

to explain a sentence enhanced pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Also,

Valenzuela-Carranza’s conviction for spousal abuse under California Penal Code

section 273.5 qualifies as a crime of violence for purposes of the Guidelines

section. United States v. Laurico-Yeno, 590 F.3d 818, 820 (9th Cir. 2009), cert.

denied, 131 S. Ct. 216 (2010).

      The within-Guidelines sentence was substantively reasonable. The district

court considered the staleness of Valenzuela-Carranza’s prior conviction but noted

his more recent criminal history, including a crime of violence to a spouse or



                                          2
cohabitant. The case is, therefore, unlike United State v. Amezcua-Vasquez, 567

F.3d 1050, 1056 (9th Cir. 2009), reh’g en banc denied, 586 F.3d 1176 (9th Cir.

2009), where the district judge did not adequately consider the staleness of the

defendant’s twenty-five-year-old conviction.

      Finally, Almendarez-Torres v. United States, 523 U.S. 224, 237 (1998), has

not been overruled by Nijhawan v. Holder, 129 S. Ct. 2294, 2302 (2009); United

States v. Valdovenos-Mendez, No. 09-50532 (9th Cir. (date of filing), 2010.)

Therefore, Valenzuela-Carranza’s prior conviction did not have to be proven to a

jury beyond a reasonable doubt to result in an increased maximum punishment

under § 1326(b).

AFFIRMED.




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