NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v.

AGUSTIN ACOSTA-MAGALLANES,

AKA Julian Acosta-Padilla, 

Defendant-Appellant.

No. 15-10415

D.C. No. 

4:15-cr-00249-RM-EJM-1

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Rosemary Marquez, District Judge, Presiding

Submitted November 16, 2016** 

San Francisco, California

Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.

Agustin Acosta-Magallanes challenges the 48-month custodial sentence and

2-year term of supervised release imposed by the district court after his guilty-plea

conviction for being found in the United States following deportation, in violation

FILED

NOV 21 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
of 8 U.S.C. § 1326, as enhanced by § 1326(b)(2). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

Acosta-Magallanes contends that the district court abused its discretion in

imposing non-individualized, contradictory supervised release conditions as he

likely will not be in the country to follow the supervised release requirements. A

court “ordinarily should not impose a term of supervised release in a case in which

supervised release is not required by statute and the defendant is a deportable alien

who likely will be deported after imprisonment.” U.S.S.G. § 5D1.1(c). District

courts, however, have discretion to impose supervised release in cases where added

deterrence is needed. See United States v. Valdavinos-Torres, 704 F.3d 679, 693

(9th Cir. 2012); see also U.S.S.G. § 5D1.1, cmt. n.5. A district court imposing a

term of supervised release for a deportable alien must articulate “a specific and

particularized explanation that supervised release would provide an added measure

of deterrence and protection based on the facts of [the defendant’s] case.”

Valdavinos-Torres, 704 F.3d at 693. Here, the district court gave an adequate and

reasoned basis for sentencing Acosta-Magallanes to supervised release. After

considering his past history, the court found that supervised release would deter

Acosta-Magallanes from returning to the United States. At sentencing, the district

court also said that the terms of supervised release would apply only if Acosta2
Magallanes returned to the United States. In our view, the district court acted

within its proper discretion by imposing a term of supervised release in the

circumstances presented.

Acosta-Magallanes also argues that 8 U.S.C. § 1326(b) is unconstitutional,

and as a result, his sentence cannot be more than two years. This court has

repeatedly rejected this argument, and we are bound to follow the United States

Supreme Court’s precedent in Almendarez-Torres v. United States, 523 U.S. 224

(1998), until it is overruled by the Supreme Court. See United States v.

Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per curiam); United States v.

Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). We will not engage in anticipatory

overruling of a Supreme Court precedent and consider appellant’s argument on this

issue as a way to preserve the issue should the Supreme Court change its law.

AFFIRMED.

3