United States v. Mario Pineda-Zetino , 583 F. App'x 582 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1945
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mario Pineda-Zetino
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: November 10, 2014
Filed: November 19, 2014
[Unpublished]
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Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.
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PER CURIAM.
Mario Pineda-Zetino pled guilty to illegal reentry of a removed alien, in
violation of 18 U.S.C. § 1326 and was sentenced to 46 months of imprisonment. On
appeal he argues the district court1 erred in imposing a 16-level sentence
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
enhancement based on his prior California conviction for assault with a deadly
weapon, in violation of California Penal Code § 245(a)(1). We affirm.
Pineda-Zetino's Presentence Investigation Report (PSR) classified his prior
California conviction as a crime of violence, and applied a 16-level increase to his
sentence. Neither Pineda-Zetino, nor the government objected to the PSR at any time
before this appeal, and so the district court adopted the PSR's computation of the
advisory guidelines sentence at the sentencing hearing. Since Pineda-Zetino did not
timely object to the classification of his prior California offense as a crime of
violence, we review for plain error. United States v. Anderson, 664 F.3d 758, 766
(8th Cir. 2012). To prevail in this appeal, Pineda-Zetino "must show that the district
court committed an error that is clear under current law, that the error affects his
substantial rights, and that the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings." Id.Section 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines
(U.S.S.G.) increases a defendant's offense level by 16-points if he was previously
removed after a conviction for a crime of violence. The U.S.S.G. defines a crime of
violence as including "aggravated assault [ . . . ] or 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." § 2L1.2(b)(1)(A)(ii) cmt. n.1(B)(iii).
Applying the categorical approach, we see no plain error in the district court's
categorization of the California assault with a deadly weapon statute as a crime of
violence. See United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (holding
that California Penal Code § 245(a)(1) is "categorically a crime of violence under the
element prong of § 2L1.2"); United States v. Sanchez-Ruedas, 452 F.3d 409, 414
(5th Cir. 2006) (holding that "California Penal Code section 245(a)(1) is a conviction
for an offense that is categorically a crime of violence" under § 2L1.2). Accordingly,
we affirm.
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