Summary
reaffirming that violation of § 245 is categorically a crime of violence and finding that Grajeda is not "clearly irreconcilable" with Descamps.
Summary of this case from United States v. GutierrezOpinion
No. 15-50455 No. 15-50456
09-29-2017
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARLOS OREGON-MENDOZA, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. Nos. 3:14-cr-01523-BEN 3:10-cr-04723-BEN MEMORANDUM Appeal from the United States District Court for the Southern District of California
Roger T. Benitez, District Judge, Presiding Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
In these consolidated appeals, Carlos Oregon-Mendoza appeals his bench-trial conviction and the 64-month sentence imposed for being a removed alien found in the United States, in violation of 8 U.S.C. § 1326, and the 24-month consecutive sentence imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Oregon-Mendoza contends that his prior conviction for assault with a deadly weapon under California Penal Code § 245(a)(1) is not a "crime of violence" for purposes of 18 U.S.C. § 16(a) or U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014). He argues that, therefore, the district court erred by denying his motion to dismiss under 8 U.S.C. § 1326(d) and by applying a 16-level enhancement to his offense level. This argument is foreclosed. See United States v. Grajeda, 581 F.3d 1186, 1190-91, 1197 (9th Cir. 2009) (violation of section 245(a)(1) "is categorically a crime of violence"). Contrary to Oregon-Mendoza's contention, our decision in Grajeda is not "clearly irreconcilable" with Descamps v. United States, 133 S. Ct. 2276 (2013). See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
Oregon-Mendoza next contends that the revocation sentence is substantively unreasonable. The sentence is not an abuse of discretion in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances, including Oregon-Mendoza's breach of the court's trust. See Gall v. United States, 552 U.S. 38, 51 (2007). Further, contrary to Oregon-Mendoza's contention, the record reflects that the district court relied on only proper sentencing factors. See United States v. Miqbel, 444 F.3d 1173, 1181-82 (9th Cir. 2006).
AFFIRMED.