USA v. David Frias-Hernandez, No. 09-50404 (9th Cir. 2010)

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FILED SEP 21 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-50404 D.C. No. 3:08-CR-02027-WQH-1 v. MEMORANDUM * DAVID FRIAS-HERNANDEZ, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN and N.R. SMITH, Circuit Judges. David Frias-Hernandez appeals the sentence imposed following his guilty plea to attempted entry after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * 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). Frias-Hernandez contends that the district court erred by determining that his prior conviction for assault with a deadly weapon, in violation of California Penal Code § 245(a)(1), constituted a crime of violence under U.S.S.G. § 2L1.2, because section 245(a)(1) does not contain the requisite use of force and is a general intent crime. These contentions are foreclosed. See United States v. Grajeda, 581 F.3d 1186, 1191-97 (9th Cir. 2009). Frias-Hernandez also contends that the district court erred by imposing a sentence in excess of the two-year statutory maximum for an 8 U.S.C. § 1326 violation. He argues that the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), has been undermined and that 8 U.S.C. § 1326(b) is unconstitutional. These contentions are foreclosed. See United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc); see also United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006). AFFIRMED.

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