United States v. Carlos Gorosave

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 20 2012

MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA, No. 10-50513

Plaintiff - Appellee, D.C. No. 3:08-cr-04429-DMS

v. MEMORANDUM * CARLOS AGUSTIN GOROSAVE,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding

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

Carlos Augustin Gorosave appeals from the 151-month sentence imposed following his guilty-plea conviction for bank robbery, in violation of 18 U.S.C. § 2113(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* 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).

Gorosave contends that the district court erred in determining that his 1996 conviction for assault with a deadly weapon in violation of section 245(a) of the California Penal Code constituted a crime of violence under U.S.S.G. § 4B1.2(a). This contention is foreclosed by United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). Gorosave’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] 10-50513