United States v. Pena-Aguilar

320 F. App'x 603

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 25, 2009
• Docket: No. 08-10230
• Status: Published

Opinion

MEMORANDUM

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Jose Francisco Pena-Aguilar appeals from the 41-month sentence imposed following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Pena-Aguilar contends that the district court erred by applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) because his statements at a prior state change of plea hearing were insufficient to establish that his prior state conviction for aggravated assault was a crime of violence. Because the factual basis set forth at the prior state change of plea hearing establishes that Pena-Aguilar fought with and struck a police officer, we conclude that the offense was a crime of violence. See U.S.S.G § 2L1.2, cmt. n. 1(B)(iii); see also United States v. Smith, 390 F.3d 661, 664-66 (9th Cir.2004), amended by 405 F.3d 726 (9th Cir.2005).

AFFIRMED.

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