United States v. Vences

368 F. App'x 792

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 2, 2010
• Docket: 07-50541
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 02 2010

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 07-50541

Plaintiff - Appellee, D.C. No. CR-07-00602-TJW

v. MEMORANDUM * RODOLFO VENCES,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding

Submitted February 16, 2010 **

Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

Rodolfo Vences appeals from the 41-month sentence imposed following his

guilty-plea conviction for being a deported alien found in the United States, in

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We affirm, but remand to correct the judgment.

Vences contends that the district court erred by applying a sentencing

enhancement pursuant to U.S.S.G. § 2L1.2(b)(a)(A)(ii) because his prior

conviction for a lewd and lascivious act on a child under 14, in violation of

California Penal Code § 288(a), does not categorically qualify as a crime of

violence. This contention is foreclosed by United States v. Medina-Villa, 567 F.3d

507, 509 (9th Cir. 2009).

Vences also contends that the district court procedurally erred by failing to

adequately explain the sentence and by treating the guidelines range as

presumptively reasonable. The record reflects that the district court did not

commit significant procedural error. See United States v. Carty, 520 F.3d 984,

992-93, 994 (9th Cir. 2008) (en banc).

Finally, Vences contends that the sentence within the guidelines range is

substantively unreasonable in light of the district court’s application of a 16-level

enhancement under U.S.S.G. § 2L1.2. Specifically, he argues that § 2L1.2 is

facially invalid because it does not account for the staleness of a conviction and

includes impermissible double counting. These arguments fail. See United States

v. Amezcua-Vasquez, 567 F.3d 1050, 1054 (9th Cir. 2009) (“It is not per se

NC/Research 2 07-50541 unreasonable to apply the enhancement when the conviction is too stale to be

counted for purposes of the criminal history.”); see also United States v.

Blanco-Gallegos, 188 F.3d 1072, 1076 (9th Cir. 1999). Moreover, in light of the

totality of the circumstances, the sentence at the bottom of the Guidelines range is

not substantively unreasonable. See Carty, 520 F.3d at 993, 995; Cf. Amezcua-

Vasquez, 567 F.3d at 1055 (concluding that a sentence that included a 16-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(A) was substantively unreasonable

where it failed to adequately reflect § 3553(a) considerations).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062

(9th Cir. 2000), we remand the case to the district court with instructions that it

delete from the judgment the reference to 8 U.S.C. § 1326(b). See United States v.

Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to

delete the reference to § 1326(b)(2)).

AFFIRMED; REMANDED to correct the judgment.

NC/Research 3 07-50541