United States v. Carrazco-Galvan

MEMORANDUM ** Ruben Carrazco-Galvan appeals from the 51-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. Carrazco-Galvan first contends that the district court erred in applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A), because assault on an officer with a deadly weapon in violation of section 245(c) 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). Carrazco-Galvan’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). Carrazco-Galvan also contends that the district court erred by denying a departure for cultural assimilation, and that it imposed a substantively unreasonable sentence. The record reflects that the district court understood its discretion to depart and did not err in declining to do so. See U.S.S.G. § 2L1.2 cmt. n. 8. Carrazco-Galvan’s sentence at the bottom of the Guidelines range is substantively reasonable, in light the totality of the circumstances and the 18 U.S.C. § 3553 (a) sentencing factors. See Gall v. United States, 552 U.S. 38, 51 , 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.