United States v. Salazar-Cruz

286 F. App'x 386

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 16, 2008
• Docket: No. 05-50919
• Status: Published

Opinion

MEMORANDUM

**

Manuel Salazar-Cruz appeals from the district court’s imposition of a 57-month sentence. Salazar-Cruz pled guilty to violating 8 U.S.C. § 1326 for being an illegal alien found in the United States following deportation. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

Salazar-Cruz argues that the district court plainly erred when it increased his Offense Level by sixteen points for a “crime of violence” on account of his California voluntary manslaughter conviction. This argument fails because that offense is indeed “a ‘crime of violence’ for purposes of U.S.S.G. § 2L1.2.” United States v. Bonilla-Montenegro, 331 F.3d 1047, 1052 (9th Cir.2003). Furthermore, the Sentencing Guidelines state that “[p]rior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n. 5 (2005).

Salazar-Cruz also asserts that the district court erroneously applied the guideline range as “a presumptive sentence” and did not adequately review the 18 U.S.C. § 3553(a) factors or detail its sentencing decision. We disagree. The district court in this case discussed Salazar-Cruz’s request for a downward departure, noted that the Guidelines were “advisory,” stated it “believe[d]” the guideline range to be “reasonable” under § 3553, and imposed a sentence at the low-end of that range. Further, as in United States v. Carty, 520 F.3d 984, 996 (9th Cir.2008) (en banc), cert. denied, Zavala v. United States, — U.S.-, 128 S.Ct. 2491, 171 L.Ed.2d 780 (2008), the court mentioned that it had “considered” the sentencing memoranda of the parties, which included Salazar-Cruz’s § 3553(a) arguments. There was no error committed by the district court in these respects. See United States v. Rivera, 527 F.3d 891, 911 (9th Cir.2008); Carty, 520 F.3d at 996.

Salazar-Cruz correctly acknowledges that his argument that § 1326(b) is unconstitutional is foreclosed by Ninth Circuit case law. See, e.g., United States v. Nar-vaez-Gomez, 489 F.3d 970, 977-78 (9th Cir.2007).

AFFIRMED.

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