United States v. Melvin Whitehead

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 30 2019 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10194

Plaintiff-Appellee, D.C. No.

1:17-cr-00177-DAD-BAM-1

v.

MELVIN WHITEHEAD, AKA Archie MEMORANDUM* Parks, AKA Marvin Roy Whitehead, AKA Melvin Ray Whitehead, AKA Melvin Ray Y,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Argued and Submitted October 22, 2019 San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and BADE, Circuit Judges.

Melvin Whitehead pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court found that Whitehead’s prior conviction for battery with injury on a peace officer, in violation of California Penal Code (“C.P.C.”) § 243(c)(2), qualified as a categorical crime of

*

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

violence under the United States Sentencing Guidelines (“U.S.S.G.”) §§ 2K2.1(a) and 4B1.2(a) and applied an increased base offense level. Whitehead appeals his sentence and argues that his prior conviction should not qualify as a crime of violence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo whether a defendant’s prior conviction qualifies as a crime of violence under the Sentencing Guidelines, United States v. Gasca-Ruiz, 852 F.3d 1167, 1174 (9th Cir. 2017) (en banc) (citations omitted), and we affirm.

“In order to determine whether a conviction qualifies as a crime of violence as defined in U.S.S.G. § 4B1.2(a)(1), [the court applies] the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600–02 (1990).” United States v. Perez, 932 F.3d 782, 784 (9th Cir. 2019). In United States v. Colon-Arreola, 753 F.3d 841, 843–45 (9th Cir. 2014), this court applied Taylor’s categorical approach and held that a violation of C.P.C. § 243(c)(2) is a crime of violence, as defined in the Sentencing Guidelines. Thus, Colon-Arreola is binding precedent in which this court has already decided the issue that Whitehead presents in this case. See Hart v. Massanari, 266 F.3d 1155, 1170–71 (9th Cir. 2001). As such, Hart forecloses Whitehead’s argument that Colon-Arreola incorrectly applied Taylor’s categorical approach. Id.

AFFIRMED.