United States v. Juan Lopez-Hernandez

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50189

Plaintiff-Appellee, D.C. No. 3:16-cr-01415-CAB

v. MEMORANDUM* JUAN LOPEZ-HERNANDEZ, a.k.a. Juan Hilario Lopez-Hernandez,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted September 12, 2018** Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

Juan Lopez-Hernandez appeals from the district court’s judgment and challenges his conviction for attempted 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.

Lopez-Hernandez contends that the district court erred in denying his motion

* 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).

to dismiss the information under 8 U.S.C. § 1326(d). We review de novo. See United States v. Moriel-Luna, 585 F.3d 1191, 1196 (9th Cir. 2009). Lopez-Hernandez argues that his conviction under California Penal Code § 243(c)(2), which formed the basis of his initial removal in 2002, is not a crime of violence. This argument is foreclosed. See United States v. Colon-Arreola, 753 F.3d 841, 844-45 (9th Cir. 2014) (holding that a conviction under California Penal Code § 243(c)(2) is a categorical crime of violence under U.S.S.G. § 2L1.2); see also United States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th Cir. 2007) (definitions of crime of violence in 18 U.S.C. § 16(a) and U.S.S.G. § 2L1.2 are “identical” so cases interpreting one provision are applicable to other provision). Contrary to Lopez-Hernandez’s contention, Colon-Arreola is not “clearly irreconcilable” with Mathis v. United States, 136 S. Ct. 2243 (2016). See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

In light of this disposition, we do not reach the government’s arguments regarding Lopez-Hernandez’s 2014 expedited removal order.

The government’s motion for judicial notice is denied.

AFFIRMED.

Footnotes

[2] 17-50189