United States v. Manuel Pineda-Fernandez

FILED NOT FOR PUBLICATION APR 20 2012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. 10-50591

Plaintiff - Appellee, D.C. No. 3:10-cr-02276-LAB

v. MEMORANDUM * MANUEL PINEDA-FERNANDEZ, a.k.a. Jorge Pineda-Fernandez,

Defendant - Appellant.

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

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

Manuel Pineda-Fernandez appeals from the 70-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and

* 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).

we affirm.

Pineda-Fernandez contends that the district court erred in applying a 16-level 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). Pineda-Fernandez’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).

AFFIRMED.

Footnotes

[2] 10-50591