NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

 v.

JONATHAN REYES,

 Defendant - Appellant.

No. 14-50206

D.C. No. 3:13-cr-04151-LAB-1

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted April 10, 2015

Pasadena, California

Before: SILVERMAN and BEA, Circuit Judges and QUIST,** Senior District

Judge. 

Defendant–Appellant Jonathan Reyes appeals his conviction and sentence

after a jury trial for being an alien found in the United States after previously being

FILED

APR 24 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * 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.
deported under 8 U.S.C. § 1326. We exercise jurisdiction under 28 U.S.C.

§§ 1291, 1294; 18 U.S.C. § 3742, and affirm.

1. Reyes moved to dismiss the indictment on the grounds his underlying

removal order was defective. See United States v. Mendoza-Lopez, 481 U.S. 828,

837–38 (1987). The district court correctly denied Reyes’s motion to dismiss the

indictment because, even if the agency’s violation of his right to a 14-day waiting

period before removal violated due process, that violation caused him no prejudice. 

Reyes has provided no evidentiary basis for his claim that had he gone before an

immigration judge he would have had plausible grounds for relief from

deportation. See United States v. Arrieta, 224 F.3d 1076, 1082–83 (9th Cir. 2000).

2. Reyes argues the district court improperly permitted a government lay

witness to identify him at trial based on a photograph. Although that identification

was improper because the witness did not have “sufficient contact with the

defendant to achieve a level of familiarity that render[ed] the lay opinion helpful,” 

United States v. Beck, 418 F.3d 1008, 1014 (9th Cir. 2005) (internal quotation

marks omitted), Reyes’s identity was proven by “other in-court identifications and

fingerprint evidence,” United States v. Albino-Loe, 747 F.3d 1206, 1211 (9th Cir.

2014). So, any error was harmless.

3. Reyes argues evidence regarding a document’s incorrect A-number was

not properly turned over pursuant to Fed. R. Crim. P. 16 and Brady v. Maryland,

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373 U.S. 83 (1963). But even if the evidence Reyes claims was suppressed were

material, it is neither likely (under Rule 16) nor reasonably probable (under Brady)

that the jury would have acquitted Reyes had he had earlier access to it. See United

States v. Doe, 705 F.3d 1134, 1152–53 (9th Cir. 2013). The incorrect number

appeared only on the notice of intent, not the removal order, warrant of removal, or

verification of removal (which also contained Reyes’ fingerprint). And the

arresting Border Patrol agent testified that Reyes made multiple admissions to him

that Reyes had previously been removed and did not have legal status in the United

States. 

4. Reyes argues this Circuit’s model criminal jury instruction was incorrect

in this case because the instruction does not specifically reference the differing

burdens of proof in civil and criminal cases. The model jury instructions properly

instructed the jury on reasonable doubt. They were neither inaccurate nor

misleading. See United States v. Totoyan, 474 F.3d 1174, 1179 (9th Cir. 2007).

5. Reyes claims the statutory sentencing maximum for his crime was two

years because the district court did not require the government to prove his prior

conviction to the jury. This argument fails. The statutory maximum sentence

applicable to a particular defendant can only be increased by proof of the

enhancing fact at trial—unless that fact is a prior conviction, as it was here. See

Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). Reyes argues that

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Almendarez-Torres has been vitiated by Alleyne v. United States, 570 U.S. ___,

133 S. Ct. 2151 (2013). But that case does not explicitly overrule AlmendarezTorres. Just as we held when Apprendi v. New Jersey seemed to disapprove of

Almendarez-Torres, “[t]he fact that the Supreme Court has expressed some

ambivalence about its own jurisprudence [in Almendarez-Torres] does not give us

the power to change it.” United States v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007).

AFFIRMED.

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