NOT FOR PUBLICATION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. 11-50110
Plaintiff - Appellee, D.C. No. 3:09-cr-03370-BTM
v.
MEMORANDUM *
RUBEN CARRAZCO-GALVAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted April 17, 2012 **
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Ruben Carrazco-Galvan appeals from the 51-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.
Carrazco-Galvan first contends that the district court erred in applying a
16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A), because assault on an
officer with a deadly weapon in violation of section 245(c) 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). Carrazco-Galvan’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).
Carrazco-Galvan also contends that the district court erred by denying a
departure for cultural assimilation, and that it imposed a substantively
unreasonable sentence. The record reflects that the district court understood its
discretion to depart and did not err in declining to do so. See U.S.S.G. § 2L1.2
2 11-50110
cmt. n. 8. Carrazco-Galvan’s sentence at the bottom of the Guidelines range is
substantively reasonable, in light the totality of the circumstances and the 18
U.S.C. § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 51
(2007).
AFFIRMED.
3 11-50110