USA v. Jesus Garcia-Fernandez, No. 10-10194 (9th Cir. 2011)

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FILED FEB 17 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 10-10194 D.C. No. 4:07-cr-02042-FRZ MEMORANDUM * v. JESUS GARCIA-FERNANDEZ, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Frank R. Zapata, District Judge, Presiding Submitted February 15, 2011 ** Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges. Jesus Garcia-Fernandez appeals from the 42-month sentence imposed following his guilty-plea conviction for attempted re-entry after deportation, in * 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). violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Garcia-Fernandez contends that the district court erred in applying a 16-level crime of violence enhancement under U.S.S.G. § 2L1.2(b)(1)(a)(ii), based on his prior robbery conviction, in violation of California Penal Code §§ 211 and 212.5(c). The district court did not err. See United States v. Becerill-Lopez, 541 F.3d 881, 890-93 (9th Cir. 2008) (holding that a conviction under California Penal Code § 211 is categorically a crime of violence under the Guidelines). Moreover, even if the district court had erred, Garcia-Fernandez has not demonstrated that his substantial rights may have been affected. See United States v. Waknine, 543 F.3d 546, 552 (9th Cir. 2008). AFFIRMED. 2 10-10194

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