NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50011
Plaintiff-Appellee, D.C. No. 8:15-cr-00072-CJC
v.
MEMORANDUM*
GERARDO ROSALES MARCIAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Gerardo Rosales Marcial appeals from the district court’s judgment and
challenges the 48-month sentence imposed following his guilty-plea conviction for
being an illegal alien found in the United States following 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 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).
Marcial contends that the district court erred by applying a 16-level
enhancement to his offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015)
because his prior conviction for making a criminal threat, in violation of California
Penal Code § 422, is not a “crime of violence.” As Marcial acknowledges, this
argument is foreclosed. See United States v. Villavicencio-Burruel, 608 F.3d 556,
563 (9th Cir. 2010). We remain bound by Villavicencio-Burruel. See Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (three-judge panel is bound
by circuit precedent unless that precedent is “clearly irreconcilable” with
intervening higher authority).
AFFIRMED.
2 16-50011