Opinion
No. 17-50189
09-18-2018
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN LOPEZ-HERNANDEZ, a.k.a. Juan Hilario Lopez-Hernandez, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 3:16-cr-01415-CAB MEMORANDUM Appeal from the United States District Court for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Juan Lopez-Hernandez appeals from the district court's judgment and challenges his conviction for attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Lopez-Hernandez contends that the district court erred in denying his motion to dismiss the information under 8 U.S.C. § 1326(d). We review de novo. See United States v. Moriel-Luna, 585 F.3d 1191, 1196 (9th Cir. 2009). Lopez-Hernandez argues that his conviction under California Penal Code § 243(c)(2), which formed the basis of his initial removal in 2002, is not a crime of violence. This argument is foreclosed. See United States v. Colon-Arreola, 753 F.3d 841, 844-45 (9th Cir. 2014) (holding that a conviction under California Penal Code § 243(c)(2) is a categorical crime of violence under U.S.S.G. § 2L1.2); see also United States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th Cir. 2007) (definitions of crime of violence in 18 U.S.C. § 16(a) and U.S.S.G. § 2L1.2 are "identical" so cases interpreting one provision are applicable to other provision). Contrary to Lopez-Hernandez's contention, Colon-Arreola is not "clearly irreconcilable" with Mathis v. United States, 136 S. Ct. 2243 (2016). See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
In light of this disposition, we do not reach the government's arguments regarding Lopez-Hernandez's 2014 expedited removal order.
The government's motion for judicial notice is denied.
AFFIRMED.