USA V. JOSE CHAVEZ-PACHECO, No. 13-10485 (9th Cir. 2015)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FEB 20 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 13-10485 D.C. No. 2:13-cr-00637-NVW-1 v. MEMORANDUM* JOSE RAFAEL CHAVEZ-PACHECO, AKA Rafael Pacheco Chavez, AKA J. Rafael Chavez-Pacheco, AKA Rafael Chavez-Pacheco, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding Argued and Submitted November 19, 2014 Pasadena California Before: KLEINFELD and WARDLAW, Circuit Judges, and KENNELLY, District Judge.** * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Matthew F. Kennelly, District Judge for the U.S. District Court for the Northern District of Illinois, sitting by designation. Jose Rafael Chavez-Pacheco (“Chavez”) appeals the district court’s imposition of a twenty-four month sentence following his plea of guilty to unlawful reentry in violation of 8 U.S.C. § 1326. We affirm. 1. The district court correctly determined that assault with a deadly weapon under California Penal Code § 245(a)(1) is categorically a “crime of violence” under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). Contrary to Chavez’s contention, the mens rea requirement for § 245(a)(1), as relevant here, was the same at the time of his 1989 conviction and the time of the 1996 conviction analyzed in Grajeda. At both times, California Penal Code § 245(a)(1) required proof that the defendant willfully committed an act that by its nature would probably and directly result in injury to another. See People v. Colantuono, 865 P.2d 704, 709 (Cal. 1994); People v. Rocha, 479 P.2d 372, 376-77 (Cal. 1971). 2. Chavez’s contention that Grajeda was abrogated by Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc), also lacks merit. We recently held that Ceron did not abrogate Grajeda because in Ceron we addressed whether a conviction under § 245(a)(1) is categorically a crime of moral turpitude, as opposed to a crime of violence. United States v. Jimenez-Arzate, — F.3d —, 2015 WL 149802 (9th Cir. Jan. 12, 2015). 2 3. Chavez also contends that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the information was deficient because it failed to include the prior conviction used to enhance his statutory maximum sentence under 8 U.S.C. § 1326(b)(1). Chavez’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998). Apprendi did not overrule AlmendarezTorres. See United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000). AFFIRMED. 3

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