United States v. Jose Chavez-Pacheco

593 F. App'x 713

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 20, 2015
• Docket: 13-10485
• Status: Unpublished

Opinion

MEMORANDUM **

Jose Rafael Chavez-Pacheco (“Chavez”) appeals the district court’s imposition of a twenty-four month sentence following his plea of guilty to unlawful reentry in violation of 8 U.S.C. § 1326. We affirm.

1. The district court correctly determined that assault with a deadly weapon under California Penal Code § 245(a)(1) is categorically a “crime of violence” under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir.2009). Contrary to Chavez’s contention, the mens rea requirement for § 245(a)(1), as relevant here, was the same at the time of his 1989 conviction and the time of the 1996 conviction analyzed in Grajeda. At both times, California Penal Code § 245(a)(1) required proof that the defendant willfully committed an act that by its nature would probably and directly result in injury to another. See People v. Colantuono, 7 Cal.4th 206, 26 Cal.Rptr.2d 908, 865 P.2d 704, 709 (1994); People v. Rocha, 3 Cal.3d 893, 92 Cal.Rptr. 172, 479 P.2d 372, 376-77 (1971).

2. Chavez’s contention that Grajeda was abrogated by Ceron v. Holder, 747 F.3d 773 (9th Cir.2014) (en banc), also lacks merit. We recently held that Ceron did not abrogate Grajeda because in Ceron we addressed whether a conviction under § 245(a)(1) is categorically a crime of moral turpitude, as opposed to a crime of violence. United States v. Jimenez-Arzate, 776 F.3d 662 (9th Cir.2015).

3. Chavez also contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the information was deficient because it failed to include the prior conviction used to enhance his statutory maximum sentence under 8 U.S.C. § 1326(b)(1). Chavez’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Apprendi did not overrule Almendarez-Torres. See United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000).

AFFIRMED.

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