United States v. David Frias-Hernandez

FILED
NOT FOR PUBLICATION SEP 21 2010

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. 09-50404

Plaintiff - Appellee, D.C. No. 3:08-CR-02027-WQH-1

v.
MEMORANDUM *
DAVID FRIAS-HERNANDEZ,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding

Submitted September 13, 2010 **

Before: SILVERMAN, CALLAHAN and N.R. SMITH, Circuit Judges.

David Frias-Hernandez appeals the sentence imposed following his guilty

plea to attempted entry after deportation in violation of 8 U.S.C. § 1326. 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).
 Frias-Hernandez contends that the district court erred by determining that his

prior conviction for assault with a deadly weapon, in violation of California Penal

Code § 245(a)(1), constituted a crime of violence under U.S.S.G. § 2L1.2, because

section 245(a)(1) does not contain the requisite use of force and is a general intent

crime. These contentions are foreclosed. See United States v. Grajeda, 581 F.3d

1186, 1191-97 (9th Cir. 2009).

Frias-Hernandez also contends that the district court erred by imposing a

sentence in excess of the two-year statutory maximum for an 8 U.S.C. § 1326

violation. He argues that the Supreme Court's decision in Almendarez-Torres v.

United States, 523 U.S. 224 (1998), has been undermined and that 8 U.S.C. §

1326(b) is unconstitutional. These contentions are foreclosed. See United States v.

Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc); see also United States v.

Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006).

AFFIRMED.