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 2018-09

United States v. Juan Lopez-Hernandez ( 2018 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        SEP 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                       No.    17-50189
Plaintiff-Appellee,             D.C. No. 3:16-cr-01415-CAB
v.
MEMORANDUM*
JUAN LOPEZ-HERNANDEZ, a.k.a. Juan
Hilario Lopez-Hernandez,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted September 12, 2018**
Before:      LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Juan Lopez-Hernandez appeals from the district court’s judgment and
challenges his conviction for attempted 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.
Lopez-Hernandez contends that the district court erred in denying his motion
*
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).
to dismiss the information under
    8 U.S.C. § 1326
    (d). We review de novo. See
United States v. Moriel-Luna,
    585 F.3d 1191
    , 1196 (9th Cir. 2009). Lopez-
Hernandez argues that his conviction under California Penal Code § 243(c)(2),
which formed the basis of his initial removal in 2002, is not a crime of violence.
This argument is foreclosed. See United States v. Colon-Arreola,
    753 F.3d 841
    ,
844-45 (9th Cir. 2014) (holding that a conviction under California Penal Code
§ 243(c)(2) is a categorical crime of violence under U.S.S.G. § 2L1.2); see also
United States v. Narvaez-Gomez,
    489 F.3d 970
    , 976 (9th Cir. 2007) (definitions of
crime of violence in
    18 U.S.C. § 16
    (a) and U.S.S.G. § 2L1.2 are “identical” so
cases interpreting one provision are applicable to other provision). Contrary to
Lopez-Hernandez’s contention, Colon-Arreola is not “clearly irreconcilable” with
Mathis v. United States,
    136 S. Ct. 2243
     (2016). See Miller v. Gammie,
    335 F.3d 889
    , 900 (9th Cir. 2003) (en banc).
In light of this disposition, we do not reach the government’s arguments
regarding Lopez-Hernandez’s 2014 expedited removal order.
The government’s motion for judicial notice is denied.
AFFIRMED.
2                                   17-50189