United States v. Gerardo Marcial

691 F. App'x 848

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 31, 2017
• Docket: 16-50011
• Status: Unpublished

Opinion

MEMORANDUM **

Gerardo Rosales Marcial appeals from the district court’s judgment and challenges the 48-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Marcial contends that the district court erred by applying a 16-level enhancement to his offense level under U.S.S.G. § 2L1.2(b)(l)(A)(ii) (2015) because his pri- or conviction for making a criminal threat, in violation of California Penal Code § 422, is not a “crime of violence.” As Marcial acknowledges, this argument is foreclosed. See United States v. Villavicencio-Burruel, 608 F.3d 556, 563 (9th Cir. 2010). We remain bound by Villavicencio-Burruel. 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).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.