                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 19 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 15-10491

                  Plaintiff-Appellee,            D.C. No. 4:15-cr-00559-JGZ

   v.
                                                 MEMORANDUM*
 JOSE MANUEL MARTINEZ-AGUAYO,

                  Defendant-Appellant.

                    Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding

                          Submitted December 14, 2016**

Before:       WALLACE, LEAVY, and FISHER, Circuit Judges.

        Jose Manuel Martinez-Aguayo appeals from the district court’s judgment

and challenges the 21-month sentence imposed following his guilty-plea

conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

        *
             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).
      Martinez-Aguayo challenges his sentence on double jeopardy and collateral

estoppel grounds. Specifically, he claims that, because a magistrate judge in the

District of Arizona previously determined that there was not probable cause to

remove him to the Western District of Michigan for a violation of supervised

release, the district court was precluded from using the underlying prior conviction

in the Western District of Michigan to calculate his criminal history score. We

review de novo claims of double jeopardy and collateral estoppel. See United

States v. Castillo-Basa, 483 F.3d 890, 895 (9th Cir. 2007). Contrary to Martinez-

Aguayo’s contention, the district court correctly determined that the magistrate

judge’s findings at the probable cause hearing did not have preclusive effect under

the Double Jeopardy Clause. See United States ex rel. Rutz v. Levy, 268 U.S. 390,

393 (1925) (removal proceedings do “not operate to put the defendant in

jeopardy”); United States v. Stoltz, 720 F.3d 1127, 1131 (9th Cir. 2013) (principles

of double jeopardy “are not implicated” before the point at which jeopardy

attaches). Martinez-Aguayo’s claim of collateral estoppel is equally unpersuasive.

See Ashe v. Swenson, 397 U.S. 436, 444 (1970).

      AFFIRMED.




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