USA V. ROBERTO CASTRO-LOPEZ, No. 13-10137 (9th Cir. 2014)
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FILED MAR 19 2014 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 13-10137 D.C. No. 4:11-cr-01349-DCBHCE-1 v. MEMORANDUM* ROBERTO CASTRO-LOPEZ, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding Argued and Submitted March 14, 2014 San Francisco, California Before: FISHER and BERZON, Circuit Judges, and QUIST, Senior District Judge.** Roberto Castro-Lopez was convicted of violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II), 952(a), 960(a)(1), 960(b)(1)(b)(ii), and received the minimum sentences required by statute. He appeals those sentences, arguing that he should * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Gordon J. Quist, Senior District Judge for the U.S. District Court for the Western District of Michigan, sitting by designation. have been sentenced under the safety valve provision, 18 U.S.C. § 3553(f), and that the district court s contrary conclusion relied on the fact of his prior juvenile adjudications, a fact that constitutionally should have been proven to a jury under United States v. Tighe, 266 F.3d 1187, 1194 95 (9th Cir. 2001), and United States v. Washington, 462 F.3d 1124, 1141 42 (9th Cir. 2006). Where, as here, Castro failed to object to the constitutionality of his sentence before the district court, we review for plain error. See, e.g., United States v. Chavez, 611 F.3d 1006, 1009 (9th Cir. 2010) (per curiam). Tighe, 266 F.3d at 1194 95, and Washington, 462 F.3d at 1141 42, require that the fact of a prior non-jury juvenile adjudication be proven to a jury, or admitted by a defendant, only where Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny apply. United States v. Labrada-Bustamante, 428 F.3d 1252, 1263 (9th Cir. 2005), affirmed the constitutionality of the safety valve provision notwithstanding that provision s reliance on judicial factfinding. If there is any tension between Labrada-Bustamante and Alleyne v. United States, 133 S. Ct. 2151 (2013) which we do not decide it does not represent the sort of clearly irreconcilable conflict that would allow us to overrule Labrada-Bustamante, see Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), on plain error review. 2 AFFIRMED. 3
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