                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 12 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    14-50427

              Plaintiff-Appellee,                D.C. No.
                                                 3:14-cr-00848-MMA-1
 v.

JUAN MARTINEZ-GOMEZ,                             MEMORANDUM*

              Defendant-Appellant.


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

                       Argued and Submitted August 4, 2016
                               Pasadena, California

Before: REINHARDT, KOZINSKI, and WARDLAW, Circuit Judges.

      Juan Martinez-Gomez appeals the sentence imposed after he pled guilty to

one count of illegal reentry in violation of 8 U.S.C. § 1326. Applying our decision

in United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009), the district court

determined that Martinez-Gomez’s prior conviction for assault with a deadly



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
weapon in violation of California Penal Code § 245 qualified as a “crime of

violence” within the meaning of United States Sentencing Guideline § 2L1.2 and

therefore applied a 16-level upward adjustment. After calculating the Guidelines

range as 37 to 46 months, the district court sentenced Martinez-Gomez to 37

months. We have jurisdiction pursuant to 8 U.S.C. §1291, and we affirm.

      1. The Supreme Court’s decisions in Descamps v. United States, 133 S. Ct.

2276 (2013) and Mathis v. United States, 136 S. Ct. 2243 (2016) are not “clearly

irreconcilable” with our decision in United States v. Grajeda, 581 F.3d 1186 (9th

Cir. 2009). Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003). In Grajeda, we

applied the elements-based categorical approach the Supreme Court established in

Taylor v. United States, 495 U.S. 575 (1990), and concluded that California Penal

Code § 245 is “categorically a crime of violence.” Grajeda, 581 F.3d at 1197.

Neither Descamps nor Mathis altered Taylor’s holding setting forth the pure

categorical approach; rather, those decisions clarified when the modified

categorical approach applies. See Mathis, 136 S. Ct. at 2251–54; Descamps, 133

S. Ct. at 2283–86. Because Grajeda—like this case—involves only the pure

categorical approach, it remains good law. See Grajeda, 581 F.3d at 1189.

      2. The Supreme Court’s holding that a prior conviction is not an element of

a subsequent offense that must be found by a jury beyond a reasonable doubt, see


                                         2
Almendarez-Torres v. United States, 523 U.S. 224, 239–47 (1998), was not

overruled sub silentio by its decision in Alleyne v. United States, 133 S. Ct. 2151

(2013). To the contrary, the Alleyne Court explained that Almendarez-Torres

“recognized a narrow exception to th[e] general rule” that “any facts that increase

the prescribed range of penalties to which a criminal defendant is exposed are

elements of the crime” that must be found by a jury. Alleyne, 133 S. Ct. at 2160 &

n.1 (citation omitted); see also Mathis, 136 S. Ct. at 2252 (“This Court has held

that only a jury, and not a judge, may find facts that increase a maximum penalty,

except for the simple fact of a prior conviction.”) (emphasis added); Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”)

(emphasis added). Almendarez-Torres, therefore, remains binding precedent.

      AFFIRMED.




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