FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50069
Plaintiff-Appellee, D.C. No.
v. 3:09-cr-00420-
ALBERTO AYALA-NICANOR, WQH-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted
May 3, 2011—Pasadena, California
Filed September 14, 2011
Before: Alfred T. Goodwin and Kim McLane Wardlaw,
Circuit Judges, and Brian M. Cogan, District Judge.*
Opinion by Judge Wardlaw
*The Honorable Brian M. Cogan, U.S. District Judge for the Eastern
District of New York, sitting by designation.
17527
UNITED STATES v. AYALA-NICANOR 17529
COUNSEL
James M. Chavez, Esq., San Diego, California, for the
defendant-appellant.
Laura E. Duffy, United States Attorney; Bruce R. Castetter,
Assistant U.S. Attorney, Chief, Appellate Section Criminal
Division; Rees F. Morgan, Assistant U.S. Attorney; San
Diego, California, for the plaintiff-appellee.
17530 UNITED STATES v. AYALA-NICANOR
OPINION
WARDLAW, Circuit Judge:
Alberto Ayala-Nicanor (Ayala) appeals his 70-month
below-Guidelines sentence of incarceration for illegal reentry
after a prior deportation, in violation of 8 U.S.C. § 1326(a)
and (b).
The district court increased Ayala’s base offense level by
sixteen points because it concluded that Ayala’s conviction
for willful infliction of corporal injury on a spouse, California
Penal Code § 273.5, is a categorical crime of violence under
U.S. Sentencing Guidelines (U.S.S.G.) § 2L1.2. In so doing,
the court relied on our 2010 decision in United States v.
Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010), which held that
§ 273.5 is a categorical crime of violence warranting a
sixteen-level increase under the Sentencing Guidelines. Ayala
urges us to conclude that we are not bound by Laurico-Yeno
because the Supreme Court’s subsequent decision in Johnson
v. United States, ___ U.S. ___, 130 S. Ct. 1265 (2010), is
irreconcilable intervening authority in that it redefines the
meaning of the term “crime of violence.”
Ayala also asserts procedural error, contending that the dis-
trict court “never responded” to Ayala’s policy challenge to
the illegal reentry Guideline requiring a sixteen-point sentenc-
ing enhancement for certain prior convictions. Because we
conclude that Laurico-Yeno remains good law and that the
district court provided a reasoned explanation for increasing
Ayala’s offense level by sixteen, we affirm.
I.
We have jurisdiction over Ayala’s timely appeal under 28
U.S.C. § 1291. We review the district court’s interpretation of
the Sentencing Guidelines, including whether a crime quali-
fies as a “crime of violence” under U.S.S.G. § 2L1.2, de novo.
UNITED STATES v. AYALA-NICANOR 17531
United States v. Bolanos-Hernandez, 492 F.3d 1140, 1141
(9th Cir. 2007). We generally review “the district court’s
application of the Sentencing Guidelines to the facts of a case
for abuse of discretion.” United States v. Grissom, 525 F.3d
691, 696 (9th Cir. 2008). However, since Ayala did not object
below to the sufficiency of the court’s explanation for its sen-
tencing determination, we review only for plain error. United
States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010).
II.
On July 27, 2009, Ayala pleaded guilty to being found in
the United States after a prior deportation, in violation of 8
U.S.C. § 1326(a) and (b).
In the presentence report (PSR), the probation officer rec-
ommended the sixteen-level increase to Ayala’s offense level
based on his prior convictions for categorical crimes of vio-
lence. The PSR indicated that in June 1998, before his depor-
tation, Ayala had been convicted of two felonies arising out
of a domestic assault upon his wife: (1) corporal injury to a
spouse, in violation of California Penal Code § 273.5(a); and
(2) assault by means likely to produce great bodily injury, in
violation of California Penal Code § 245(a)(1). Ayala was
sentenced to one year in state prison on his § 273.5 convic-
tion, and three years in state prison on the § 245(a)(1) convic-
tion, with the sentences running concurrently.
Ayala objected to the PSR on the ground that California
Penal Code § 273.5, corporal injury to a spouse, is not a cate-
gorical crime of violence because it is broad enough to
include a non-violent “least touching.”1 Ayala also argued that
1
Ayala’s sentencing memorandum did not address his § 245(a)(1) con-
viction, nor did the district court rely on this conviction for the sixteen-
level enhancement. Because a conviction under § 245(a) qualifies as a cat-
egorical crime of violence, United States v. Grajeda, 581 F.3d 1186, 1189
17532 UNITED STATES v. AYALA-NICANOR
the illegal-reentry sentencing enhancement is without empiri-
cal or moral justification, results in unwarranted sentencing
disparities, and imposes a disproportionate penalty. Ayala
sought a variance of eight levels under 18 U.S.C. § 3553(a) to
account for these policy concerns, requesting that the court
impose a 48-month sentence of incarceration, instead of a sen-
tence within the advisory Guidelines range of 84-105 months.
The Government’s Sentencing Memorandum urged the dis-
trict court to apply the sixteen-level enhancement, and recom-
mended a sentence of 100 months of incarceration.
After the parties filed their sentencing memoranda, but
before Ayala’s sentencing hearing, we definitively rejected
the argument that a violation of § 273.5 is not a categorical
crime of violence warranting a sixteen-level increase under
U.S.S.G. § 2L1.2. Laurico-Yeno, 590 F.3d at 818. At sentenc-
ing, Ayala’s counsel conceded that Laurico-Yeno foreclosed
her argument that § 273.5 is not categorically a crime of vio-
lence. The district court then applied the sixteen-level
enhancement to find a total offense level of 22, found that
Ayala’s criminal history category was VI, and calculated an
advisory Guidelines range of 84-105 months of incarceration.
The district court reasoned that, in light of Ayala’s extensive
criminal history, the 48-month sentence advocated by defense
counsel would neither protect the public from future crimes
by Ayala nor serve as adequate deterrence for Ayala. The
court explicitly noted that it had considered Ayala’s policy
attack on the sixteen-level increase, and it reiterated the advi-
sory nature of the Sentencing Guidelines. After considering
the 18 U.S.C. § 3553(a) sentencing factors and articulating
(9th Cir. 2009), the government contends that Ayala’s challenge to the
enhancement fails, given that § 245(a) would also support the enhance-
ment. Although the district court could have also increased the offense
level based on Ayala’s § 245(a) conviction, the court’s calculation instead
rested solely upon Ayala’s conviction under § 273.5(a). Therefore, we
would be compelled to remand for resentencing if we were to agree that
§ 273.5(a) is not a categorical crime of violence.
UNITED STATES v. AYALA-NICANOR 17533
§ 3553(a)’s parsimony provision as the basis for the sentence
it intended to impose, the court imposed a sentence of 70
months of incarceration, to be followed by a three-year term
of supervised release. Ayala timely appealed.
III.
In evaluating whether a prior conviction is for a categorical
crime of violence warranting the illegal reentry sentencing
enhancement, we apply the “categorical approach” set forth in
Taylor v. United States, 495 U.S. 575 (1990). Under the cate-
gorical approach, “the court looks ‘not to the particular facts
underlying [the defendant’s prior] conviction[ ],’ but ‘only to
the fact of conviction and the statutory definition of the prior
offense.’ ” United States v. Aguila-Montes de Oca, No. 05-
50170, slip op. at 10586 (9th Cir. Aug. 11, 2011) (en banc)
(alterations in original) (quoting Taylor, 495 U.S. at 600,
602). The sentencing enhancement applies only if “the ‘full
range of conduct’ covered by the state statute[ ] fall[s] within
the scope of the federal statutory provision.” United States v.
Pallares-Galem, 359 F.3d 1088, 1099-1100 (9th Cir. 2004).
To escape the enhancement, a defendant must show either that
the statutory definition of the crime covers a broader range of
conduct than the relevant federal generic definition, or that he
can point to “cases in which the state courts in fact did apply
the statute” to conduct outside the federal definition. Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
The illegal reentry sentencing Guideline provision advises
a sentencing enhancement of sixteen levels if a defendant has
previously been deported after a felony conviction for a
“crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The appli-
cable Guidelines commentary defines “crime of violence” to
include any offense “under federal, state, or local law that has
as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G.
§ 2L1.2, cmt. n.1(B)(iii).
17534 UNITED STATES v. AYALA-NICANOR
[1] California Penal Code § 273.5(a) punishes any person
who “willfully inflicts upon a person who is his or her spouse,
former spouse, cohabitant, former cohabitant, or the mother or
father of his or her child, corporal injury resulting in a trau-
matic condition.” The statute defines a “traumatic condition”
as “a condition of the body, such as a wound or external or
internal injury, whether of a minor or serious nature, caused
by a physical force.” § 273.5(c). The relevant question is
whether a conviction under § 273.5 requires the use, the
attempted use, or the threatened use of physical force against
the person of another. In Laurico-Yeno, 590 F.3d 818, a deci-
sion filed in January 2010, we answered this question in the
affirmative, holding that § 273.5 is categorically a crime of
violence within the meaning of § 2L1.2(b)(1)(A)(ii). The
Supreme Court issued its decision in Johnson, 130 S. Ct.
1265, in March of 2010. Ayala argues we are not bound by
Laurico-Yeno, citing Miller v. Gammie, 335 F.3d 889, 893
(9th Cir. 2003) (en banc), in which we held that a three-judge
panel need not follow a prior panel decision if its reasoning
is irreconcilable with an intervening decision by a higher
court. Because we conclude that nothing in Johnson under-
mines the reasoning of Laurico-Yeno, we reject Ayala’s argu-
ment.
In Laurico-Yeno, we held that § 273.5 is a categorical crime
of violence under the illegal reentry Guidelines because
§ 273.5 “requires the intentional use of physical force against
the person of another.” 590 F.3d at 823. We recognized that:
(1) our prior case law restricted the meaning of “crime of vio-
lence” to only those crimes that require the “intentional use of
force,” id. at 821 (citing Fernandez-Ruiz v. Gonzales, 466
F.3d 1121, 1132 (9th Cir. 2006)); and (2) to qualify as a
“crime of violence,” the crime must, under Supreme Court
precedent, fall “in the category of ‘violent, active crimes.’ ”
Id. (quoting Leocal v. Ashcroft, 543 U.S. 1, 11 (2004)). Rea-
soning that “the plain terms of the statute require a person
willfully to inflict upon another person a traumatic condition,”
id., thus satisfying both the elements of intent and active vio-
UNITED STATES v. AYALA-NICANOR 17535
lence, we concluded that § 273.5 “fits squarely within the
[federal definition of a crime of violence] by requiring the
deliberate use of force that injures another,” id. at 822.
We rejected Laurico’s argument that a non-violent “least
touching” could result in a conviction under § 273.5 because
Laurico failed to “identify a single § 273.5 case resulting from
a non-violent use of force.” Id. at 822. Laurico merely pres-
ented the panel with a “ ‘theoretical possibility[ ] that [Cali-
fornia] would apply its statute to conduct’ outside the term
‘crime of violence,’ ” id. (quoting Duenas-Alvarez, 549 U.S.
at 193) (alterations in original), and such “legal imagination”
did not suffice to place § 273.5 outside the federal generic
definition of “crime of violence,” id. (quoting Duenas-
Alvarez, 549 U.S. at 193). In sum, because the text of the stat-
ute plainly required the intentional use of physical force
against another resulting in physical injury, and Laurico had
not shown that the California courts applied the statute more
broadly, § 273.5 qualified as a categorical crime of violence.
Ayala contends that we are not bound by Laurico-Yeno
because the subsequent Supreme Court decision in Johnson
articulated a new definition of “crime of violence” that is
irreconcilable with the holding in Laurico-Yeno. In Johnson,
the Supreme Court considered whether a Florida battery con-
viction qualified as a “violent felony” within the meaning of
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).
The ACCA defines a violent felony to include any crime pun-
ishable for more than one year that “has as an element the use,
attempted use, or threatened use of physical force against the
person of another.” § 924(e)(2)(B)(i). The Court concluded
that the term “physical force” referred to violent force capable
of causing physical pain or injury. Johnson, 130 S. Ct. at
1271. The Court determined that the Florida statute did not
qualify as a “violent felony” because the Florida Supreme
Court had interpreted its battery statute to prohibit “any inten-
tional physical contact, ‘no matter how slight.’ ” 130 S. Ct. at
17536 UNITED STATES v. AYALA-NICANOR
1270 (quoting State v. Hearns, 961 So. 2d 211, 218 (Fla.
2007)) (emphasis in original).
[2] Nothing in Johnson undermines Laurico-Yeno. We
have already considered and rejected this argument in
Banuelos-Ayon v. Holder, 611 F.3d 1080 (9th Cir. 2010),
albeit under a different statutory scheme. In Banuelos-Ayon,
we affirmed that a conviction under § 273.5 qualifies categor-
ically as a crime of violence in the immigration context, thus
rendering the petitioner removable.2 As does Ayala,
Banuelos-Ayon “contend[ed] that Laurico-Yeno [wa]s distin-
guishable from the present case because Johnson is an inter-
vening opinion by a higher authority that undermines
Laurico-Yeno.” Id. at 1086. The relevant question, however,
was the same as presented here: whether the use, attempted
use, or threatened use of physical force against another is an
element of § 273.5. We reviewed the California cases cited by
the defendant and concluded that the California courts’ inter-
pretations of the statute “either do not contradict, or . . .
affirm, that for a conviction under § 273.5(a) there must be a
strong enough use of direct force to result in an injury.”
Banuelos-Ayon, 611 F.3d at 1085.
Ayala cites the same three unpublished California Courts of
Appeal decisions that we analyzed and rejected in Banuelos-
Ayon in support of his argument that § 273.5 covers a minor
“least touching.” As we concluded in Banuelos-Ayon, these
decisions—People v. Stearns, No. B183521, 2006 WL
946671 (Cal. Ct. App. Apr. 13, 2006), People v. Guster, No.
C043276, 2004 WL 397060 (Cal. Ct. App. Mar. 4, 2004), and
People v. McCombs, No. F036894, 2002 WL 31097693 (Cal.
2
The petitioner was charged with removability pursuant to 8 U.S.C.
§ 1227(a)(2)(E). This section renders an alien removable if he has been
convicted of a crime of domestic violence, which is defined as including
any “crime of violence (as defined in section 16 of Title 18) against a per-
son committed . . . by an individual with whom the person shares a child
in common.” 8 U.S.C. § 1227(a)(2)(E)(i).
UNITED STATES v. AYALA-NICANOR 17537
Ct. App. Sept. 20, 2002)—do not “concern conduct punished
under § 273.5(a) that might be characterized as ‘the least
offensive touching.’ ” Banuelos-Ayon, 611 F.3d at 1085. In
Laurico-Yeno we rejected the additional two cases relied upon
by Ayala, People v. Thurston, 84 Cal. Rptr. 2d 221 (Ct. App.
1999) and People v. Gutierrez, 217 Cal. Rptr. 616 (Ct. App.
1985), because they did not lend support to the contrary argu-
ment. 590 F.3d at 821-822.
In Banuelos-Ayon, we further noted that even if we had
been persuaded by defendant’s arguments that § 273.5 did not
qualify as a categorical “crime of violence,” we were bound
by Laurico-Yeno’s resolution of this question, and that John-
son in no way undermined Laurico-Yeno. 611 F.3d at 1086
(“[N]othing in Johnson is contrary to our approach to deter-
mining the elements of a conviction under California Penal
Code § 273.5(a), nor our conclusion that a conviction under
that statute is a categorical crime of violence . . . .”). Although
counsel in Banuelos-Ayon did not present the same arguments
advanced by Ayala about the effect of Johnson, these addi-
tional arguments do not persuade us that Banuelos-Ayon was
wrongly decided.
[3] Contrary to Ayala’s position, the Johnson Court did not
alter the degree of force required under 18 U.S.C. § 16’s defi-
nition of a “crime of violence.” Instead, the Johnson opinion
recognizes that the federal “crime of violence” definition is
“very similar to [the ACCA’s violent felony definition], in
that it includes any felony offense which ‘has as an element
the use . . . of physical force against the person or property
of another.’ ” 130 S. Ct. at 1270-71 (citing 8 U.S.C. § 16(a)).
Quoting Leocal v. Ashcroft, 543 U.S. 1 (2004), the Court
observes that “the ordinary meaning of [“crimes of vio-
lence”], combined with § 16’s emphasis on the use of physi-
cal force against another person . . . suggests a category of
violent, active crimes.” Id. at 1271 (quoting Leocal, 543 U.S.
at 11). Rather than undermining Laurico-Yeno’s interpretation
of the physical force requirement, in which we similarly relied
17538 UNITED STATES v. AYALA-NICANOR
upon the Leocal definition of a crime of violence, the Johnson
interpretation reinforces that determined in Laurico-Yeno.
[4] The Laurico-Yeno holding is entirely consistent with
Johnson’s definition which requires the use of “violent force
—that is, force capable of causing physical pain or injury to
another person.”3 130 S. Ct. at 1271. In Laurico-Yeno, we
held that § 273.5 was a categorical crime of violence precisely
because the statute requires intentional use of physical force
that results in a traumatic condition. Given the injury require-
ment in § 273.5, it was clear that the statute “does not penal-
ize minimal, non-violent touchings.” Laurico-Yeno, 590 F.3d
at 822.
Ayala also argues that we improperly “refused to credit the
interpretation of § 273.5’s elements by California’s own
courts” in Laurico-Yeno, and that this conflicts with John-
son’s holding that the Court was “bound by the Florida
Supreme Court’s interpretation of state law, including its
3
We note that Johnson interprets the definition of a “violent felony”
under the ACCA. It appears that the Court’s interpretation of the requisite
degree of force was significantly influenced by the statutory context:
We think it clear that in the context of a statutory definition of
‘violent felony,’ the phrase ‘physical force’ means violent force
—that is, force capable of causing physical pain or injury to
another person. . . . When the adjective ‘violent’ is attached to the
noun ‘felony,’ its connotation of strong physical force is even
clearer.
130 S. Ct. at 1271 (citations omitted). Moreover, the Court noted that its
interpretation of “physical force” was confined to “the context of a statu-
tory definition of ‘violent felony.’ ” Id. at 1273. Thus, even if we were to
agree with Ayala that Johnson requires a higher degree of violent force for
a conviction to qualify as a violent felony under the ACCA, this would not
alter the degree of force required for a conviction to qualify as a “crime
of violence” under 18 U.S.C. § 16. And, the Johnson Court rejected the
Government’s argument that the Court’s definition of a “violent felony”
under the ACCA would restrict the scope of other statutes that require the
use or attempted use of “physical force,” such as the definition of a misde-
meanor crime of domestic violence. 130 S. Ct. at 1271-72.
UNITED STATES v. AYALA-NICANOR 17539
determination of the elements” of criminal statutes. Johnson,
130 S. Ct. 1269. However, Laurico-Yeno is entirely consistent
with this holding. In Johnson, the Court recognized that the
Florida Supreme Court had held that the Florida battery law
could be satisfied by “any intentional physical contact, ‘no
matter how slight.’ ” 130 S. Ct. at 1270 (quoting Hearns, 961
So. 2d at 218). Given the Florida Supreme Court’s interpreta-
tion of its own statute, no “legal imagination” was required in
order for the Court to conclude that the statute did not require
the use of violent physical force.
Similarly, in Laurico-Yeno, we turned to the California
courts’ construction of the required element of “traumatic”
force to determine that the element satisfied the federal
generic definition of a crime of violence. Laurico pointed to
California cases interpreting § 273.5 to include a simple bat-
tery that results in injury to the victim, see Gutierrez, 217 Cal.
Rptr. at 620-21, and to the California courts’ recognition that
the “least touching” qualifies as a simple battery, see Thur-
ston, 84 Cal. Rptr. 2d at 224. Laurico asserted that the Cali-
fornia courts’ prior interpretations meant that “a § 273.5
conviction could result from a non-violent use of force.”
Laurico-Yeno, 530 F.3d at 822 (emphasis in original). We
rejected Laurico’s argument, reasoning that § 273.5’s require-
ment that the defendant’s touching must also result in a trau-
matic condition made clear that the statute “does not penalize
minimal, non-violent touchings.” Id. Thus, we did not ignore
the California courts’ interpretation of the scope of § 273.5.
Rather, we concluded that the cases Laurico cited failed to
demonstrate that there was a realistic possibility that the Cali-
fornia courts would apply the statute to conduct that did not
qualify as a “crime of violence.” Id. This conclusion was fur-
ther bolstered by the defendant’s inability to “identify a single
§ 273.5 case resulting from a non-violent use of force.” Id.
[5] Ayala’s argument rests on the very decisions we
rejected in Laurico-Yeno and Banuelos-Ayon as unsupportive
of the proposition he asserts. Ayala, like Laurico and Ban-
17540 UNITED STATES v. AYALA-NICANOR
uelos before him, fails to identify any California cases demon-
strating that a defendant has been convicted under this statute
for the non-violent use of force. Johnson is readily distin-
guishable because the Florida Supreme Court’s interpretation
of the statute made clear that a defendant could be convicted
under the state statute without using the level of force
required by the federal generic definition. In sum, nothing in
Johnson undermines the validity of Laurico-Yeno, a conclu-
sion we already reached in Banuelos-Ayon, and that we reaf-
firm today.
IV.
Ayala argues that the district court committed procedural
error by failing to respond to his non-frivolous policy chal-
lenge to the sixteen-level sentencing enhancement on the
grounds that it arbitrarily and disproportionately increases the
length of sentences under 8 U.S.C. § 1326. Under Rita v.
United States, 551 U.S. 338, 356 (2007), a “sentencing judge
should set forth enough [of an explanation] to satisfy the
appellate court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal deci-
sionmaking authority.” A district court’s imposition of a sen-
tence within the recommended Guidelines range normally
does not require a lengthy explanation. Id. However, if “a
party contests the Guidelines sentence generally under
§ 3553(a)—that is argues that the Guidelines reflect an
unsound judgment, or, for example, that they do not generally
treat certain defendant characteristics in the proper way,” id.
at 357, a more thorough explanation is appropriate. The Rita
Court also recognized that while it may be preferable in cer-
tain cases for a judge to give a lengthier explanation, “[w]here
a matter is . . . conceptually simple . . . and the record makes
clear that the sentencing judge considered the evidence and
arguments, we do not believe the law requires the judge to
write more extensively.” Id. at 359.
[6] Although “[i]t would be procedural error for a district
court . . . to fail adequately to explain the sentence selected,”
UNITED STATES v. AYALA-NICANOR 17541
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc), here the district court’s explanation was sufficient. The
sentencing transcript demonstrates that the district court rec-
ognized its discretion, under Kimbrough v. United States, 552
U.S. 85 (2007), to vary from the Sentencing Guidelines, and
that it did in fact impose a sentence that varied from the
Guidelines range—just not by as many months as Ayala
requested. Unlike in United States v. Henderson, ___ F.3d
___, 2011 WL 1613411 (9th Cir. Apr. 29, 2011), there is no
lack of clarity as to whether the district court failed “to appre-
ciate its Kimbrough discretion to vary from the . . . Guidelines
. . . on policy grounds.” Id. at *8. Here, the district court noted
the advisory nature of the Guidelines in response to Ayala’s
policy-based challenge.
The court properly calculated the applicable Guidelines
range, evaluated the § 3553(a) sentencing factors, and stated
that he had considered Ayala’s policy challenge:
I have certainly considered all of the argument of
counsel and certainly [defense counsel’s] comments
and argument that she has filed in her sentencing
papers with respect to the disproportionate impact
that a plus-16 has on [Ayala’s] advisory sentencing
guidelines. Although certainly I would note that the
guidelines are advisory only, and the advisory guide-
lines range is only one factor that the court consid-
ers.
The court rejected Ayala’s request for a variance from the
Guideline range of 84 to 105 months down to 48 months
based on Ayala’s extensive criminal history, noting that his
criminal record “is almost unbroken from the time he was a
young man.” The court also considered Ayala’s serious crimi-
nal history category of VI, which had not taken into account
eleven contacts with law enforcement that did not result in
charges or convictions and other crimes which did not score.
In addition, the court considered the number of times Ayala
17542 UNITED STATES v. AYALA-NICANOR
had been deported, after which Ayala returned to the United
States, only to commit further crimes. The court concluded
pursuant to § 3553 factors (a)(2)(B) and (a)(2)(C) that Ayala’s
requested variance to 48 months would not “protect the public
from future crimes of the defendant, nor do I think it would
afford adequate deterrence to future criminal conduct.”
[7] In the end, the court reasonably rejected both the Gov-
ernment’s requested 100 months of incarceration and Ayala’s
requested 48-month sentence. After analyzing all of the
§ 3553 factors, the court settled on a sentence of incarceration
of 70 months to protect the public from future crimes by
Ayala, to significantly deter Ayala from returning to this
country, and to reflect the seriousness of the offense. Finally,
that the court imposed a below Guidelines sentence demon-
strates that it was well aware of its ability to do so under
Supreme Court precedent.
CONCLUSION
Nothing in Johnson undermines the continuing validity of
Laurico-Yeno and its holding that a conviction under Califor-
nia Penal Code § 273.5 is a categorical crime of violence for
the purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Ayala’s con-
viction under § 273.5 qualifies as a “crime of violence” war-
ranting a sixteen-level sentencing enhancement under the
Sentencing Guidelines. Nor did the district court commit pro-
cedural error in imposing a 70-month sentence of incarcera-
tion.
AFFIRMED.