United States v. Robert Salcedo ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50191
Plaintiff-Appellee, D.C. No. 2:15-cr-00260-AB
v.
MEMORANDUM*
ROBERT VINCENT SALCEDO,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
André Birotte, Jr., District Judge, Presiding
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Robert Vincent Salcedo appeals from the district court’s judgment and
challenges the 110-month sentence imposed following his guilty-plea conviction
for possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm but remand for the district
*
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).
court to amend the judgment.
Salcedo argues that his prior conviction for carjacking under California
Penal Code § 215 is not a crime of violence and, therefore, the district court erred
in applying a base offense level of 22 under U.S.S.G. § 2K2.1(a)(3). This
argument is foreclosed for Salcedo, who was sentenced prior to the August 1, 2016
amendment to the Guidelines’ definition of generic extortion. See United States v.
Velasquez-Bosque, 601 F.3d 955, 959 (9th Cir. 2010) (§ 215 is a categorical crime
of violence because it criminalizes the same or less conduct as the combination of
generic robbery and generic extortion); see also United States v. Bankston, 901
F.3d 1100, 1104 (9th Cir. 2018) (Amendment 798 to the Guidelines, which
narrowed the definition of generic extortion, does not apply retroactively).
Salcedo’s argument that Descamps v. United States, 570 U.S. 254 (2013), is clearly
irreconcilable with Velasquez-Bosque or with the case on which it relies, United
States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), is also foreclosed. See
United States v. Chavez-Cuevas, 862 F.3d 729, 740 (9th Cir. 2017) (“Descamps
did not impliedly abrogate Becerril-Lopez”), cert. denied, 138 S. Ct. 1179 (2018).
Nor does Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018), compel a different
result because the statute at issue there, 18 U.S.C. § 16(a), does not contain an
enumerated offense clause. See United States v. Flores-Mejia, 687 F.3d 1213-
1215-16 (9th Cir. 2012).
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Salcedo next contends, and the government concedes, that the case should be
remanded to conform the written judgment to the oral pronouncement of sentence.
We agree. We remand to the district court to amend the judgment to conform to
the court’s oral pronouncement that the sentence in this case is to run concurrently
to Salcedo’s state sentence. See United States v. Hernandez, 795 F.3d 1159, 1169
(9th Cir. 2015).
AFFIRMED; REMANDED to correct the judgment.
3 16-50191