Opinion
No. 10-10582 D.C. No. 2:10-cr-00929-GMS
05-15-2012
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAVIER HERNANDEZ-PEREZ, a.k.a. Ricardo Jimenez Hernandez, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Javier Hernandez-Perez appeals from the 33-month sentence imposed following his guilty-plea conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Hernandez-Perez contends that the district court failed to recognize its authority to reject the illegal reentry Guideline's prior-conviction sentencing enhancement on policy grounds. The record belies this contention. The district court considered Hernandez-Perez's policy and other mitigation arguments, recognized that the Guidelines are advisory, imposed a sentence that was 24 months below the advisory Guidelines range, and found the circumstances insufficient to justify a shorter sentence. See United States v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011).
Hernandez-Perez's contention that his prior conviction for making a criminal threat, in violation of section 422 of the California Penal Code, is not categorically a crime of violence is foreclosed. See United States v. Villavicencio-Burruell, 608 F.3d 556, 563 (9th Cir. 2010).
AFFIRMED.