United States v. Francisco Jimenez-Arzate

FILED
NOT FOR PUBLICATION JAN 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50373
Plaintiff - Appellee, D.C. No. 3:12-cr-01421-LAB
v.
MEMORANDUM*
FRANCISCO JIMENEZ-ARZATE,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
Francisco Jimenez-Arzate appeals from the district court’s judgment and
challenges the 34-month sentence imposed following his guilty-plea conviction for
being a deported alien found in the United States, in violation of 8 U.S.C. § 1326.
*
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).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Jimenez-Arzate contends that the district court erred by applying a 12-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A) because assault with a deadly
weapon under section 245(a) of the California Penal Code is not a categorical
crime of violence in light of recent California case law that does not require the
intentional use of force for a conviction under section 245(a). This contention is
foreclosed by United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009).
Jimenez-Arzate’s argument that we are not bound by Grajeda is without merit.
See Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir. 2010) (a three-judge panel is
bound by circuit precedent unless it is “clearly irreconcilable” with intervening
higher authority); see also Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir.
2010) (concluding that Johnson v. United States, 559 U.S. 133 (2010), which
concerned a statute “akin to California’s simple battery statute,” did not undermine
this court’s prior conclusion that a conviction for willful infliction of corporal
injury upon a spouse or cohabitant was a categorical crime of violence).
Jimenez-Arzate also contends that the district court erred in imposing a
three-year term of supervised release in light of U.S.S.G. § 5D1.1(c) and Jimenez-
Arzate’s individual circumstances. The district court did not err. The record
reflects that the district court considered the 18 U.S.C. § 3553(a) sentencing
2 12-50373
factors, including the need for deterrence. Moreover, the three-year term of
supervised release is substantively reasonable in light of the totality of the
circumstances, including Jimenez-Arzate’s criminal history and prior deportations.
See Gall v. United States, 552 U.S. 38, 51 (2007); see also U.S.S.G. § 5D1.1 cmt.
n.5.
AFFIRMED.
3 12-50373