United States v. Robert Salcedo

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 21, 2018
• Docket: 16-50191
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50191

Plaintiff-Appellee, D.C. No. 2:15-cr-00260-AB

v. MEMORANDUM* ROBERT VINCENT SALCEDO,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California André Birotte, Jr., District Judge, Presiding

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Robert Vincent Salcedo appeals from the district court’s judgment and

challenges the 110-month sentence imposed following his guilty-plea conviction

for possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm but remand for the district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). court to amend the judgment.

Salcedo argues that his prior conviction for carjacking under California

Penal Code § 215 is not a crime of violence and, therefore, the district court erred

in applying a base offense level of 22 under U.S.S.G. § 2K2.1(a)(3). This

argument is foreclosed for Salcedo, who was sentenced prior to the August 1, 2016

amendment to the Guidelines’ definition of generic extortion. See United States v.

Velasquez-Bosque, 601 F.3d 955, 959 (9th Cir. 2010) (§ 215 is a categorical crime

of violence because it criminalizes the same or less conduct as the combination of

generic robbery and generic extortion); see also United States v. Bankston, 901

F.3d 1100, 1104 (9th Cir. 2018) (Amendment 798 to the Guidelines, which

narrowed the definition of generic extortion, does not apply retroactively).

Salcedo’s argument that Descamps v. United States, 570 U.S. 254 (2013), is clearly

irreconcilable with Velasquez-Bosque or with the case on which it relies, United

States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), is also foreclosed. See

United States v. Chavez-Cuevas, 862 F.3d 729, 740 (9th Cir. 2017) (“Descamps

did not impliedly abrogate Becerril-Lopez”), cert. denied, 138 S. Ct. 1179 (2018).

Nor does Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018), compel a different

result because the statute at issue there, 18 U.S.C. § 16(a), does not contain an

enumerated offense clause. See United States v. Flores-Mejia, 687 F.3d 1213-

1215-16 (9th Cir. 2012).

2 16-50191 Salcedo next contends, and the government concedes, that the case should be

remanded to conform the written judgment to the oral pronouncement of sentence.

We agree. We remand to the district court to amend the judgment to conform to

the court’s oral pronouncement that the sentence in this case is to run concurrently

to Salcedo’s state sentence. See United States v. Hernandez, 795 F.3d 1159, 1169

(9th Cir. 2015).

AFFIRMED; REMANDED to correct the judgment.

3 16-50191