United States v. Ricardo Rios-Perez , 380 F. App'x 662 ( 2010 )

FILED
NOT FOR PUBLICATION MAY 27 2010
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. 08-50496
Plaintiff - Appellee, D.C. No. 3:08-cr-01452-WQH-1
v.
MEMORANDUM *
RICARDO RIOS-PEREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted October 8, 2009
Pasadena, California
Before: W. FLETCHER and CLIFTON, Circuit Judges, and SINGLETON, Senior
District Judge.**
Ricardo Rios-Perez appeals the 57-month sentence he received for attempted
reentry after deportation in violation of 8 U.S.C. § 1326, challenging both the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
categorization of his California attempted murder conviction as one for a crime of
violence and the constitutionality of his sentence. We affirm.
We have rejected each of Rios-Perez’s arguments that the offense of
attempted murder under California law is not a crime of violence under the
categorical approach of Taylor v. United States, 495 U.S. 575 (1990). First, the
“slight act” that California requires is equivalent to the “substantial step” in the
generic version of attempt. See United States v. Saavedra-Velazquez, 578 F.3d
1103, 1110 (9th Cir. 2009). Second, whether there are affirmative defenses is
irrelevant to our analysis under the categorical approach. See United States v.
Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010) (“The availability of an
affirmative defense is not relevant to the categorical analysis.”).
We have also rejected Rios-Perez’s remaining arguments: that Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998), has been overruled or
abrogated; and that 8 U.S.C. § 1326(b) is unconstitutional. See, e.g., United States
v. Gomez-Mendez, 486 F.3d 599, 606 (9th Cir. 2007).
AFFIRMED.
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