USA V. MARIO VALENCIA-OCHOA, No. 16-50007 (9th Cir. 2016)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT AUG 01 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 16-50007 D.C. No. 3:14-cr-02345-CAB v. MEMORANDUM* MARIO VALENCIA-OCHOA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding Submitted July 26, 2016** Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges. Mario Valencia-Ochoa appeals from the district court’s judgment and challenges the revocation of supervised release. 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). Valencia-Ochoa contends that 18 U.S.C. § 3583(e)(3), which provides that a district court may revoke supervised release and impose a term of imprisonment upon finding by a preponderance of the evidence that the defendant violated a condition of supervised release, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). As Valencia-Ochoa concedes, this claim is foreclosed. See United States v. Santana, 526 F.3d 1257, 1262 (9th Cir. 2008). AFFIRMED. 2 16-50007

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