United States v. Sergio Gutierrez

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 29 2019 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-35036

Plaintiff-Appellee, D.C. Nos. 1:16-cv-01127-AA 1:11-cr-30009-AA-3

v.

SERGIO SALDIVAR GUTIERREZ, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Sergio Saldivar Gutierrez appeals from the district court’s order denying his 28 U.S.C. § 2255 motion to vacate the 180-month mandatory minimum sentence imposed pursuant to the Armed Career Criminal Act (ACCA). We have

*

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).

jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v. Hill, 915 F.3d 669, 673 (9th Cir. 2019), we affirm.

Gutierrez contends that he is entitled to relief because his four prior convictions for assault with a deadly weapon under California Penal Code § 245(a) are not violent felonies under the ACCA, 18 U.S.C. § 924(e)(2)(B)(i). Gutierrez’s argument is foreclosed by United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1065-68 (9th Cir. 2018), which was decided while this appeal was pending. In Vasquez-Gonzalez, this court held that section 245(a)(1) is a categorical crime of violence under 18 U.S.C. § 16(a), which is materially identical to 18 U.S.C. § 924(e)(2)(B)(i). See id. at 1068; see also United States v. Studhorse, 883 F.3d 1198, 1203 (9th Cir.), cert. denied, 139 S. Ct. 127 (2018) (18 U.S.C. § 16(a) and 18 U.S.C. § 924(e)(2)(B)(i) have “near-identical language”). Accordingly, Vasquez-Gonzalez controls here and the district court did not err in denying Gutierrez’s motion.

AFFIRMED.

2 18-35036