USA V. VICTOR HERNANDEZ, No. 12-10364 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAY 20 2013 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff -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. 12-10364 D.C. No. 4:11-cr-03773-RCC v. MEMORANDUM * VICTOR MANUEL HERNANDEZ, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Ronald S.W. Lew, District Judge, Presiding ** Submitted May 14, 2013 *** Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges. Victor Manuel Hernandez appeals from the district court s judgment and challenges the 46-month sentence imposed following his guilty-plea conviction for * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Ronald S.W. Lew, Senior United States District Judge for the Central District of California, sitting by designation. *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Hernandez contends that the district court erred when it used his prior conviction both as a basis for a 16-level enhancement and in calculating his criminal history category. As Hernandez concedes, this contention is foreclosed by United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (per curiam). Hernandez also contends that the district court erred in applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(a)(ii), because it wrongly characterized his prior robbery conviction under California Penal Code § 211 as a crime of violence. The district court did not err. See United States v. Becerril-Lopez, 541 F.3d 881, 893 & n.10 (9th Cir. 2008) (holding that a conviction under § 211 is categorically a crime of violence under the Guidelines). AFFIRMED. 2 12-10364

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