United States v. Bahena-Aranda

MEMORANDUM ** Lazaro Bahena-Aranda appeals from the 50-month sentence imposed following his guilty-plea conviction for reentry after *700 deportation, in violation of 8 U.S.C. § 1826 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. Bahena-Aranda contends that the district court erred in applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A), because assault with a deadly weapon under section 245(a) of the California Penal Code is not a categorical crime of violence. This contention is foreclosed by United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir.2009). Bahena-Aranda’s argument that we are not bound by Grajeda in light of the subsequent case of Johnson v. United States, — U.S. -, 130 S.Ct. 1265 , 176 L.Ed.2d 1 (2010), is without merit. See Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir.2010) (a three-judge panel may ignore circuit precedent only where it is “clearly irreconcilable” with intervening higher authority); Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir.2010) (concluding that Johnson , which concerned a statute “akin to California’s simple battery statute,” did not undermine the court’s prior conclusion that a conviction for willful infliction of corporal injury upon a spouse or cohabitant was a categorical crime of violence). Bahena-Aranda’s contention that the district court erred by failing to examine judicially noticeable documents fails because his prior conviction is a categorical crime of violence. See Taylor v. United States, 495 U.S. 575, 602 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990). Bahena-Aranda does not contest the fact of his prior conviction, nor did the district court err in relying on the uncontested pre-sentence report to establish the fact of that conviction. See United States v. Romero-Rendon, 220 F.3d 1159, 1163 (9th Cir.2000). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.