USA V. JAVIER HERNANDEZ-PEREZ, No. 10-10582 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAY 18 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff -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. 10-10582 D.C. No. 2:10-cr-00929-GMS v. MEMORANDUM * JAVIER HERNANDEZ-PEREZ, a.k.a. Ricardo Jimenez Hernandez, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding Submitted May 15, 2012 Before: ** CANBY, GRABER, and M. SMITH, Circuit Judges. Javier Hernandez-Perez appeals from the 33-month sentence imposed following his guilty-plea conviction for 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. * 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). Hernandez-Perez contends that the district court failed to recognize its authority to reject the illegal reentry Guideline s prior-conviction sentencing enhancement on policy grounds. The record belies this contention. The district court considered Hernandez-Perez s policy and other mitigation arguments, recognized that the Guidelines are advisory, imposed a sentence that was 24 months below the advisory Guidelines range, and found the circumstances insufficient to justify a shorter sentence. See United States v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011). Hernandez-Perez s contention that his prior conviction for making a criminal threat, in violation of section 422 of the California Penal Code, is not categorically a crime of violence is foreclosed. See United States v. Villavicencio-Burruell, 608 F.3d 556, 563 (9th Cir. 2010). AFFIRMED. 2 10-10582

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