Opinion
No. 16-50011
05-31-2017
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GERARDO ROSALES MARCIAL, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 8:15-cr-00072-CJC MEMORANDUM Appeal from the United States District Court for the Central District of California
Cormac J. Carney, District Judge, Presiding Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Gerardo Rosales Marcial appeals from the district court's judgment and challenges the 48-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Marcial contends that the district court erred by applying a 16-level enhancement to his offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) because his prior conviction for making a criminal threat, in violation of California Penal Code § 422, is not a "crime of violence." As Marcial acknowledges, this argument is foreclosed. See United States v. Villavicencio-Burruel, 608 F.3d 556, 563 (9th Cir. 2010). We remain bound by Villavicencio-Burruel. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (three-judge panel is bound by circuit precedent unless that precedent is "clearly irreconcilable" with intervening higher authority).
AFFIRMED.