United States v. Alex Mazariego-Gomez

Court of Appeals for the Ninth Circuit · 15-50079 · 2016-04-18 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Alex MAZARIEGO-GOMEZ, Defendant-Appellant

Area: other
Panel: Joseph J. Farris (author), Jay S. Bybee, Richard C. Tallman

Analysis

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Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 18 2016

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 15-50079 Plaintiff - Appellee, D.C. No. 3:14-cr-02294-LAB v. MEMORANDUM* ALEX MAZARIEGO-GOMEZ, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted April 13, 2016** Before: FARRIS, TALLMAN, and BYBEE, Circuit Judges.

Alex Mazariego-Gomez appeals from the district court’s judgment and challenges the 30-month sentence imposed following his guilty-plea conviction for being a removed alien found in the United States, 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). Mazariego-Gomez contends that the district court erred in applying a 16- level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because his prior conviction under California Penal Code § 211 is not a crime of violence. This claim is foreclosed. See United States v. Becerril-Lopez, 541 F.3d 881, 893 & n.10 (9th Cir. 2008) (a conviction for robbery under California Penal Code § 211 is a categorical crime of violence). Contrary to Mazariego-Gomez’s assertion, Descamps v. United States, 133 S. Ct. 2276 (2013), which concerns the modified categorical approach, does not allow us to disregard Becerril-Lopez. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (three-judge panel is bound by circuit precedent unless that precedent is “clearly irreconcilable” with intervening higher authority).

Because the district court properly applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), we need not reach Mazariego-Gomez’s contention that his prior conviction is not an aggravated felony for purposes of an 8-level enhancement under § 2L1.2(b)(1)(C).

AFFIRMED.

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