United States v. Francisco Heredia-Silva

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50209

Plaintiff-Appellee, D.C. No. 3:16-cr-02622-LAB

v. MEMORANDUM* FRANCISCO HEREDIA-SILVA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted August 15, 2018** Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

Francisco Heredia-Silva appeals his bench-trial conviction for being a removed alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Heredia-Silva contends that his prior conviction for making terrorist threats

* 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).

under California Penal Code § 422 is not a “crime of violence” for purposes of 18 U.S.C. § 16(a). He argues, therefore, that the district court erred by denying his motion to dismiss the information under 8 U.S.C. § 1326(d). As Heredia-Silva concedes, this argument is foreclosed. See Arellano Hernandez v. Lynch, 831 F.3d 1127, 1132 (9th Cir. 2016) (“[A]pplying our precedent, section 422 is categorically a crime of violence.”). Heredia-Silva’s request that we sua sponte call for en banc review of this precedent is denied.

AFFIRMED.

Footnotes

[2] 17-50209