United States v. Victor Hernandez , 519 F. App'x 448 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 20 2013
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. 12-10364
Plaintiff - Appellee, D.C. No. 4:11-cr-03773-RCC
v.
MEMORANDUM *
VICTOR MANUEL HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Ronald S.W. Lew, District Judge, Presiding **
Submitted May 14, 2013 ***
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Victor Manuel Hernandez appeals from the district court’s judgment and
challenges the 46-month sentence imposed following his guilty-plea conviction for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ronald S.W. Lew, Senior United States District Judge
for the Central District of California, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Hernandez contends that the district court erred when it used his prior
conviction both as a basis for a 16-level enhancement and in calculating his
criminal history category. As Hernandez concedes, this contention is foreclosed by
United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (per
curiam).
Hernandez also contends that the district court erred in applying a 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(a)(ii), because it wrongly characterized
his prior robbery conviction under California Penal Code § 211 as a “crime of
violence.” The district court did not err. See United States v. Becerril-Lopez, 541
F.3d 881, 893 & n.10 (9th Cir. 2008) (holding that a conviction under § 211 is
categorically a “crime of violence” under the Guidelines).
AFFIRMED.
2 12-10364