USA V. ARMANDO GOMEZ-HERNANDEZ, No. 15-30264 (9th Cir. 2016)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JUN 20 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 15-30264 D.C. No. 9:15-cr-00005-DLC v. MEMORANDUM* ARMANDO GOMEZ-HERNANDEZ, a.k.a. Carlos Atondo, a.k.a. Mario Gomez, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Dana L. Christensen, Chief Judge, Presiding Submitted June 14, 2016** Before: BEA, WATFORD, and FRIEDLAND, Circuit Judges. Armando Gomez-Hernandez appeals from the district court’s judgment and challenges the 24-month sentence imposed following his guilty-plea conviction for illegal reentry in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 * 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). U.S.C. § 1291, and we affirm, but remand to correct the judgment. Gomez-Hernandez contends that the district court violated the Sixth Amendment by increasing the statutory maximum sentence for his offense on the basis of a prior felony conviction that was not admitted by him or found by a jury. As Gomez-Hernandez concedes, this argument is foreclosed by the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v. Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (“We have repeatedly held . . . that Almendarez-Torres is binding unless it is expressly overruled by the Supreme Court.”). In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand this case to the district court with instructions that it delete from the judgment the reference to § 1326(b)(1). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)). AFFIRMED; REMANDED to correct the judgment. 2 15-30264

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