United States v. Deanzer Clark

FILED
NOT FOR PUBLICATION DEC 20 2016

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10073

Plaintiff-Appellee, D.C. No. 4:10-cr-00293-PJH

v.
MEMORANDUM*
DEANZER ARLEE CLARK, a.k.a.
Deaner Clark, a.k.a. Deanzer Clark, a.k.a.
D.A..

Defendant-Appellant,

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding

Submitted December 14, 2016**

Before: WALLACE, LEAVY, and FISHER, Circuit Judges.

Deanzer Arlee Clark appeals from the district court’s judgment and

challenges the 15-month sentence imposed upon revocation of supervised release.

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 Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
 Clark contends that the district court erred by determining that his prior

conviction for making criminal threats, in violation of California Penal Code §

422, was a “crime of violence” under U.S.S.G. § 7B1.1(a)(1)(A)(i). As Clark

acknowledges, this argument is foreclosed. See United States v. Villavicencio-

Burruel, 608 F.3d 556, 563 (9th Cir. 2010) (making criminal threats, in violation of

California Penal Code § 422, “is categorically a conviction for a crime of

violence”); see also Arellano Hernandez v. Lynch, 831 F.3d 1127, 1131 (9th Cir.

2016) (“Villavicencio-Burruel remains the law of this circuit.”).

Clark further contends that the district court erred by basing the challenged

determination on his underlying conduct, rather than the fact of conviction. We

review for plain error, United States v. Valencia-Barragan, 608 F.3d 1103, 1108

(9th Cir. 2010), and there was no error. Clark’s contention is belied by the record,

which reflects that the district court discussed Clark’s underlying conduct when

evaluating the application of the 18 U.S.C. § 3583(e) sentencing factors, as the

court was required to do. See United States v. Carty, 520 F.3d 984, 991 (9th Cir.

2008) (en banc).

AFFIRMED.

2 16-10073