United States v. Gustavo Trueba

690 F. App'x 967

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 11, 2017
• Docket: 16-10105
• Status: Unpublished

Opinion

MEMORANDUM **

Gustavo Davalos Trueba appeals from the district court’s judgment and challenges the 38-month sentence imposed following his guilty-plea conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Davalos Trueba contends that the district court erred by enhancing his sentence on the basis that his prior conviction of willful infliction of corporal injury on a spouse or cohabitant under California Penal Code § 273.5 was a “crime of violence” under U.S.S.G.§ 2L1.2(b)(1)(A)(ii) (2014). This claim is foreclosed by United States v. Laurico-Yeno, 590 F.3d 818, 823 (9th Cir. 2010). Contrary to Davalos Treuba’s claim, Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) is not “clearly irreconcilable” with this precedent. 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).

Davalos Trueba also contends that the district court erred in applying the enhancement because his conviction under section 273.5 does not qualify as a felony. This claim is without merit. A violation of section 273.5 is punishable by up to four years of imprisonment. See Cal. Penal Code § 273.5(a). It thus-meets the definition of “felony.” See U.S.S.G. § 2L1.2 cmt. n.2 (2014) (“ ‘[Fjelony’ means any federal, state, or local offense punishable by imprisonment for a term exceeding one year.”),

AFFIRMED.

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