United States v. Farain Robledo-Rivera

FILED NOT FOR PUBLICATION NOV 14 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 11-10630 Plaintiff - Appellee, D.C. No. 4:11-cr-01303-CKJ- DTF-1 v. FARAON ROBLEDO-RIVERA, MEMORANDUM* Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Submitted November 7, 2012** San Francisco, California Before: FARRIS, NOONAN, and BYBEE, Circuit Judges. Defendant-Appellant Robledo-Rivera appeals the district court’s sentence of 63-months incarceration for illegal reentry in violation of 8 U.S.C. § 1326(a). Due to his 2004 conviction for robbery in Kentucky, the district court computed a 16- * 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). level enhancement for defendant’s prior “crime of violence” pursuant to U.S.S.G. § 2L1.2(b)(1)(A). This court reviews de novo whether a prior conviction is a “crime of violence” under U.S.S.G. § 2L1.2(b). See United States v. Gonzalez-Perez, 472 F.3d 1158, 1159 (9th Cir. 2007). The facts are known to the parties. Robledo-Rivera argues that the government has not proven its case because, in finding the sentence enhancement, the district court relied upon judicially-noticed documents that do not specifically cite the Kentucky robbery statute for which Robledo-Rivera was previously convicted. The district court found this deficiency unavailing for three reasons: that (1) robbery always involves the actual or threatened use of force, (2) Kentucky has a single robbery statute, which articulates a “crime of violence,” and (3) robbery is generically enumerated as a “crime of violence” under U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)(2005). AFFIRMED. 2