                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 09 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10411

              Plaintiff - Appellee,              D.C. No. 2:12-cr-01301-ROS-1

  v.
                                                 MEMORANDUM*
LEONARDO PORTILLO-VEGA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Roslyn O. Silver, Senior District Judge, Presiding

                             Submitted June 13, 2014**
                              San Francisco, California

Before: O’SCANNLAIN, SACK***, and BEA, Circuit Judges.

       Leonardo Portillo-Vega appeals his conviction and sentence under

8 U.S.C. § 1326 for illegal reentry after deportation.

        *
             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).
        ***
            The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
       Portillo-Vega contends that his conviction should be vacated and the

indictment against him dismissed because his identity was the fruit of an illegal

arrest by state authorities. Assuming—without deciding—that Portillo-Vega was

illegally arrested and that he has not waived his illegal-arrest claim by entering an

unconditional guilty plea, his argument is foreclosed by Supreme Court and Ninth

Circuit precedent. I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984) (“The

‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is

never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that

an unlawful arrest, search, or interrogation occurred.”); United States v. Guzman-

Bruno, 27 F.3d 420, 421–22 (9th Cir. 1994) (holding, within the context of a

prosecution under 8 U.S.C. § 1326, that neither defendant’s “identity nor the

records of his previous convictions and deportations could be suppressed as a

result of the illegal arrest”).

       Portillo-Vega attempts to distinguish these cases, and raise a separate basis

for vacating his conviction, by claiming that the illegal arrest constituted

outrageous government conduct. Because Portillo-Vega did not raise this

argument before the district court, it is waived, United States v. Robertson, 52 F.3d

789, 791 (9th Cir. 1994) (“Issues not presented to the district court cannot




                                           2
generally be raised for the first time on appeal.”), and none of the exceptions to

waiver apply here. Id.

      Portillo-Vega also argues that the Sixth Amendment prohibited the district

court from increasing Portillo-Vega’s sentence based on his prior felony

conviction, since the existence of the conviction was not a fact found by the jury.

The Supreme Court rejected precisely this argument in Almendarez-Torres v.

United States, 523 U.S. 224, 239–47 (1998). Portillo-Vega claims that subsequent

cases have overruled Almendarez-Torres, but the Supreme Court has expressly

declined to revisit its holding in that case. See Alleyne v. United States, 133 S. Ct.

2151, 2160 n.1 (2013). Almendarez-Torres continues to bind us. Consequently,

Portillo-Vega’s Sixth Amendment argument fails.

      AFFIRMED.




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