Free Mandate of 9th Circuit - District Court of Arizona - Arizona

UNITED STATES COURT OF APPEALS
_ FOR THE NINTH CIRCUIT I
UNITED STATES OF AMERICA, No. 05-10557
D.C. No. CR-03-012992SMM
Plaintiff - Appellee,
v.
JUDGMENT
HUMBERTO MARTINEZ-VALDEZ,
Defendant - Appellant. ` C · P " ‘
1
Appeal from the United States District Court for the District of Arizona
(Phoenix). _
This cause came on to be heard on the Transcript ofthe Record from the
United States District Court for the District of Arizona (Phoenix) and was duly
submitted.
On consideration whereoi it is now here ordered and adjudged by this
Court, that the judgment of the said District Court in this cause be, and hereby is
Filed and entered 01/30/07
I conev
exmv A. cmreasou
etsmx or eouar
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` Case 2:O3—cr—O1299-SIVIIVI Document 119 Filed O2/21/2007 Page 1 of 3

-: ‘ ,, 5 ’s
J FILED
A Nor Pon PUBLICATION JAN 30 2007
A Umrsn STATES comm OF APPEALS °AT'·l7$·’”?f<$:·?i=iT<'=i·i°»S1i·°P"€A°i'=¤ERK
FOR THE NINTH CIRCUIT
UNITED STATES, N0. 05-10557
D.C. No. CR03-01299 PHX
- Plaintift7Appellee,
V, ’ A V , .
A HUMBERTO MARTINEZ-VALDEZ, MEMORANDUM*
Defendant/Appellant.
1
Appeal from the United States District Court
for the District of Arizona g
Judge Stephen M. McNan1ee, Chief Judge, Presiding
_ Argued and Submitted November 14, 2006
_ San Francisco, California
Before: KLEINFELD and THOMAS, Circuit Judges, and LEIGHTON,"`
· District Judge. A - ~- . p __ _ _ P
* This disposition is not appropriate for publication and is not precedent except as provided
by Ninth Circuit Rule 36-3.
" The Honorable Ronald B. Leighton, United States District Judge for the Western
District of Washington, sitting by designation.
Case 2:03-cr-O1299—SI\/II\/I Document 119 Filed O2/21/2007 Page 2 of 3

The govemment concedes error inthe district court’s charging instruction
on voluntariness. That error was harmless because ofthe overwhelming evidence
against Martinez-Valdez. Martinez-Valdez’s surroundings when caught and his
admissions when taken into custody, as well as the geography ofthe border area,
establish that it was "beyond a reasonable doubt that the error . . . did not
contribute to the verdict." United States v. Neder, 527 U.S. 1, 15 (1999).
There was no blain error in the sentencing enhancementibecause " 9
Almendarez—Torres v. United States, 523 U.S. 224 (1998), vitiates Martinez- i
Valdez’s Apprendi argument.
AFFIRMED.
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