United States v. Javier Hernandez-Perez , 473 F. App'x 584 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10582
Plaintiff - Appellee, D.C. No. 2:10-cr-00929-GMS
v.
MEMORANDUM *
JAVIER HERNANDEZ-PEREZ, a.k.a.
Ricardo Jimenez Hernandez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
**
Submitted May 15, 2012
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Javier Hernandez-Perez appeals from the 33-month sentence imposed
following his guilty-plea conviction for reentry of a removed alien, 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 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).
Hernandez-Perez contends that the district court failed to recognize its
authority to reject the illegal reentry Guideline’s prior-conviction sentencing
enhancement on policy grounds. The record belies this contention. The district
court considered Hernandez-Perez’s policy and other mitigation arguments,
recognized that the Guidelines are advisory, imposed a sentence that was 24
months below the advisory Guidelines range, and found the circumstances
insufficient to justify a shorter sentence. See United States v. Ayala-Nicanor, 659
F.3d 744, 752-53 (9th Cir. 2011).
Hernandez-Perez’s contention that his prior conviction for making a criminal
threat, in violation of section 422 of the California Penal Code, is not categorically
a crime of violence is foreclosed. See United States v. Villavicencio-Burruell, 608
F.3d 556, 563 (9th Cir. 2010).
AFFIRMED.
2 10-10582