United States v. Lazaro Bahena-Aranda

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FILED NOT FOR PUBLICATION APR 20 2012

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10181

Plaintiff - Appellee, D.C. No. 4:10-cr-02936-CKJ-JJM

v. MEMORANDUM * LAZARO BAHENA-ARANDA,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Submitted April 17, 2012 ** Before: LEAVY, PAEZ, and BEA, Circuit Judges.

Lazaro Bahena-Aranda appeals from the 50-month sentence imposed following his guilty-plea conviction for reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Bahena-Aranda contends that the district court erred in applying a 16-level

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

enhancement under U.S.S.G. § 2L1.2(b)(1)(A), because assault with a deadly weapon under section 245(a) of the California Penal Code is not a categorical crime of violence. This contention is foreclosed by United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). Bahena-Aranda’s argument that we are not bound by Grajeda in light of the subsequent case of Johnson v. United States, 130 S. Ct. 1265 (2010), is without merit. See Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir. 2010) (a three-judge panel may ignore circuit precedent only where it is “clearly irreconcilable” with intervening higher authority); Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir. 2010) (concluding that Johnson, which concerned a statute “akin to California's simple battery statute,” did not undermine the court’s prior conclusion that a conviction for willful infliction of corporal injury upon a spouse or cohabitant was a categorical crime of violence).

Bahena-Aranda’s contention that the district court erred by failing to examine judicially noticeable documents fails because his prior conviction is a categorical crime of violence. See Taylor v. United States, 495 U.S. 575, 602 (1990). Bahena-Aranda does not contest the fact of his prior conviction, nor did the district court err in relying on the uncontested pre-sentence report to establish the fact of that conviction. See United States v. Romero-Rendon, 220 F.3d 1159, 1163 (9th Cir. 2000).

AFFIRMED.

Footnotes

[2] 11-10181