United States v. David Frias-Hernandez

396 F. App'x 356

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 21, 2010
• Docket: 09-50404
• Status: Unpublished

Opinion

MEMORANDUM **

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.

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, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.