                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 17 2015

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50244

               Plaintiff - Appellee,             D.C. No. 3:14-cr-00928-LAB

  v.
                                                 MEMORANDUM*
NICANDRO CASTANEDA-
GUARDIOLA,

               Defendant - Appellant.


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

                             Submitted March 10, 2015**

Before:        FARRIS, WARDLAW, and PAEZ, Circuit Judges.

       Nicandro Castaneda-Guardiola appeals from the district court’s judgment

and challenges the 37-month sentence imposed following his bench-trial

conviction for attempted reentry of a removed alien, in violation of 8 U.S.C.


          *
             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).
§ 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Castaneda-Guardiola contends that his sentence should not have exceed two

years because the fact of the prior conviction that subjected him to enhanced

penalties under section 1326(b) was neither alleged in the indictment nor proven

beyond a reasonable doubt. The Supreme Court rejected this argument in

Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998). Castaneda-

Guardiola’s contention that Almendarez-Torres has been overruled is incorrect.

See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (declining to revisit

holding in Almendarez-Torres).

      AFFIRMED.




                                          2                                     14-50244
