USA V. GERARDO MARCIAL, No. 16-50011 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED MAY 31 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. U.S. COURT OF APPEALS No. 16-50011 D.C. No. 8:15-cr-00072-CJC MEMORANDUM* GERARDO ROSALES MARCIAL, Defendant-Appellant. Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding Submitted May 24, 2017** Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON, Circuit Judges. Gerardo Rosales Marcial appeals from the district court’s judgment and challenges the 48-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following 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 Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Marcial contends that the district court erred by applying a 16-level enhancement to his offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) because his prior conviction for making a criminal threat, in violation of California Penal Code § 422, is not a “crime of violence.” As Marcial acknowledges, this argument is foreclosed. See United States v. Villavicencio-Burruel, 608 F.3d 556, 563 (9th Cir. 2010). We remain bound by Villavicencio-Burruel. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (three-judge panel is bound by circuit precedent unless that precedent is “clearly irreconcilable” with intervening higher authority). AFFIRMED. 2 16-50011

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