U.S. v. Gonzalez-Bustamante

Full title: UNITED STATES of America, Plaintiff--Appellee, v. Carlos David…

Court: United States Court of Appeals, Ninth Circuit

Date published: Oct 23, 2002

49 F. App'x 722 (9th Cir. 2002)

Opinion

49 Fed.Appx. 722 (9th Cir. 2002) UNITED STATES of America, Plaintiff--Appellee, v. Carlos David GONZALEZ-BUSTAMANTE, Defendant--Appellant. No. 02-50120. D.C. No. CR-99-02512-JSR. United States Court of Appeals, Ninth Circuit. Oct. 23, 2002

Argued and Submitted Oct. 11, 2002.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Following affirmance of his conviction of attempting to enter United States after deportation and making false claim of United States citizenship and remand for resentencing, 18 Fed.Appx. 546, 2001 WL 1002816, defendant was resentenced by the United States District Court for the Southern District of California, John S. Rhoades, J. Defendant appealed his sentence. The Court of Appeals held that prior conviction of assault with deadly weapon could constitute a crime of violence, for purposes of enhancement under Sentencing Guidelines, regardless of whether it was a general or specific intent crime.

Affirmed.

Page 723.

Appeal from the United States District Court for the Southern District of California, John S. Rhoades, District Judge, Presiding.

Before REINHARDT, TROTT, and SILVERMAN, Circuit Judges.

MEMORANDUM ^*

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Carlos David Gonzalez-Bustamante appeals his sentence imposed following conviction by jury of attempting to enter the United States after deportation and making a false claim of United States citizenship in violation of 8 U.S.C. § 1326 and 18 U.S.C. § 911, respectively. We have jurisdiction, 28 U.S.C. § 1291, and affirm. The parties are familiar with the facts, therefore, we discuss only those necessary to our analysis.

Bustamante asserts that his conviction under California law for assault with a deadly weapon in violation of Cal.Penal Code § 245(a)(2) does not constitute a "crime of violence" for purposes of sentence enhancement under U.S. S.G. § 2L1.2 because, he argues, that requires a finding of specific intent, but the California crime for which he was convicted is only a general intent crime. We disagree. Our precedent instructs that a "crime of violence" does not require a finding of intentional use of force. United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (9th Cir.2001).

Bustamante's remaining contention which we review for plain error is that 18 U.S.C. § 3583, which authorizes a term of supervised release, violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This argument is foreclosed by our recent decision in United States v. Liero, 298 F.3d 1175 (9th Cir.2002).

AFFIRMED