                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            NOV 21 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    15-10415

              Plaintiff-Appellee,                D.C. No.
                                                 4:15-cr-00249-RM-EJM-1
 v.

AGUSTIN ACOSTA-MAGALLANES,                       MEMORANDUM*
AKA Julian Acosta-Padilla,

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Rosemary Marquez, District Judge, Presiding

                          Submitted November 16, 2016**
                             San Francisco, California

Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.

      Agustin Acosta-Magallanes challenges the 48-month custodial sentence and

2-year term of supervised release imposed by the district court after his guilty-plea

conviction for being found in the United States following deportation, in violation

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of 8 U.S.C. § 1326, as enhanced by § 1326(b)(2). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      Acosta-Magallanes contends that the district court abused its discretion in

imposing non-individualized, contradictory supervised release conditions as he

likely will not be in the country to follow the supervised release requirements. A

court “ordinarily should not impose a term of supervised release in a case in which

supervised release is not required by statute and the defendant is a deportable alien

who likely will be deported after imprisonment.” U.S.S.G. § 5D1.1(c). District

courts, however, have discretion to impose supervised release in cases where added

deterrence is needed. See United States v. Valdavinos-Torres, 704 F.3d 679, 693

(9th Cir. 2012); see also U.S.S.G. § 5D1.1, cmt. n.5. A district court imposing a

term of supervised release for a deportable alien must articulate “a specific and

particularized explanation that supervised release would provide an added measure

of deterrence and protection based on the facts of [the defendant’s] case.”

Valdavinos-Torres, 704 F.3d at 693. Here, the district court gave an adequate and

reasoned basis for sentencing Acosta-Magallanes to supervised release. After

considering his past history, the court found that supervised release would deter

Acosta-Magallanes from returning to the United States. At sentencing, the district

court also said that the terms of supervised release would apply only if Acosta-


                                          2
Magallanes returned to the United States. In our view, the district court acted

within its proper discretion by imposing a term of supervised release in the

circumstances presented.

      Acosta-Magallanes also argues that 8 U.S.C. § 1326(b) is unconstitutional,

and as a result, his sentence cannot be more than two years. This court has

repeatedly rejected this argument, and we are bound to follow the United States

Supreme Court’s precedent in Almendarez-Torres v. United States, 523 U.S. 224

(1998), until it is overruled by the Supreme Court. See United States v.

Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per curiam); United States v.

Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). We will not engage in anticipatory

overruling of a Supreme Court precedent and consider appellant’s argument on this

issue as a way to preserve the issue should the Supreme Court change its law.

      AFFIRMED.




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