FILED

NOT FOR PUBLICATION MAR 17 2015

MOLLY C. DWYER, CLERK

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

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 14-50244

Plaintiff - Appellee, D.C. No. 3:14-cr-00928-LAB v.

MEMORANDUM* NICANDRO CASTANEDA- GUARDIOLA,

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Submitted March 10, 2015** Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.

Nicandro Castaneda-Guardiola appeals from the district court’s judgment and challenges the 37-month sentence imposed following his bench-trial conviction for attempted reentry of a removed alien, in violation of 8 U.S.C.

*

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). § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Castaneda-Guardiola contends that his sentence should not have exceed two years 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 beyond a reasonable doubt. The Supreme Court rejected this argument in Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998). Castaneda- Guardiola’s contention that Almendarez-Torres has been overruled is incorrect. See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (declining to revisit holding in Almendarez-Torres).

AFFIRMED.

2 14-50244