United States v. Jesus Garcia-Fernandez

FILED
NOT FOR PUBLICATION FEB 17 2011

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. 10-10194

Plaintiff - Appellee, D.C. No. 4:07-cr-02042-FRZ

v. MEMORANDUM *

JESUS GARCIA-FERNANDEZ,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding

Submitted February 15, 2011 **

Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

Jesus Garcia-Fernandez appeals from the 42-month sentence imposed

following his guilty-plea conviction for attempted re-entry after deportation, in

*
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).
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

Garcia-Fernandez contends that the district court erred in applying a 16-level

“crime of violence” enhancement under U.S.S.G. § 2L1.2(b)(1)(a)(ii), based on his

prior robbery conviction, in violation of California Penal Code §§ 211 and

212.5(c). The district court did not err. See United States v. Becerill-Lopez, 541

F.3d 881, 890-93 (9th Cir. 2008) (holding that a conviction under California Penal

Code § 211 is categorically a “crime of violence” under the Guidelines).

Moreover, even if the district court had erred, Garcia-Fernandez has not

demonstrated that his substantial rights may have been affected. See United States

v. Waknine, 543 F.3d 546, 552 (9th Cir. 2008).

AFFIRMED.

2 10-10194