FILED

NOT FOR PUBLICATION DEC 12 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 14-50023

Plaintiff - Appellee, D.C. No. 3:12-cr-00037-WQH v.

MEMORANDUM* AMADEO MEDINA,

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Submitted December 9, 2014** Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.

Amadeo Medina appeals from the district court’s judgment and challenges his jury-trial conviction and 94-month sentence for attempted entry after deportation, 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 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).

Medina contends that his conviction and sentence violate the Sixth Amendment because the fact of the prior conviction that subjected him to enhanced penalties under section 1326(b) was neither alleged in the indictment nor proven to the jury. The Supreme Court rejected this argument in Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998). Medina’s contention that Almendarez-Torres has been implicitly overruled is incorrect. See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (expressly declining to revisit holding in Almendarez-Torres).

AFFIRMED.

2 14-50023