United States v. David Frias-Hernandez
UNITED STATES of America, Plaintiff-Appellee, v. David FRIAS-HERNANDEZ, Defendant-Appellant
- Proceeding
- appeal
- Trial court
- United States District Court for the Southern District of California
- Trial judge
- William Q. Hayes (district judge)
- Outcome
- affirmed — AFFIRMED.
- Area
- criminal
- Panel
- Barry G. Silverman (author), Smith, Consuelo M. Callahan
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion
FILED NOT FOR PUBLICATION SEP 21 2010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. 09-50404 Plaintiff - Appellee, D.C. No. 3:08-CR-02027-WQH-1 v. MEMORANDUM * DAVID FRIAS-HERNANDEZ, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN and N.R. SMITH, Circuit Judges.
David Frias-Hernandez appeals the sentence imposed following his guilty plea to attempted entry after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* 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). Frias-Hernandez contends that the district court erred by determining that his prior conviction for assault with a deadly weapon, in violation of California Penal Code § 245(a)(1), constituted a crime of violence under U.S.S.G. § 2L1.2, because section 245(a)(1) does not contain the requisite use of force and is a general intent crime. These contentions are foreclosed. See United States v. Grajeda, 581 F.3d 1186, 1191-97 (9th Cir. 2009).
Frias-Hernandez also contends that the district court erred by imposing a sentence in excess of the two-year statutory maximum for an 8 U.S.C. § 1326 violation. He argues that the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), has been undermined and that 8 U.S.C. § 1326(b) is unconstitutional. These contentions are foreclosed. See United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc); see also United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006).
AFFIRMED.