USA V. FRANCISCO HEREDIA-SILVA, No. 17-50209 (9th Cir. 2018)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 21 2018 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. U.S. COURT OF APPEALS 17-50209 D.C. No. 3:16-cr-02622-LAB v. MEMORANDUM* FRANCISCO HEREDIA-SILVA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted August 15, 2018** Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges. Francisco Heredia-Silva appeals his bench-trial conviction for being a removed alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Heredia-Silva contends that his prior conviction for making terrorist threats * 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). under California Penal Code § 422 is not a “crime of violence” for purposes of 18 U.S.C. § 16(a). He argues, therefore, that the district court erred by denying his motion to dismiss the information under 8 U.S.C. § 1326(d). As Heredia-Silva concedes, this argument is foreclosed. See Arellano Hernandez v. Lynch, 831 F.3d 1127, 1132 (9th Cir. 2016) (“[A]pplying our precedent, section 422 is categorically a crime of violence.”). Heredia-Silva’s request that we sua sponte call for en banc review of this precedent is denied. AFFIRMED. 2 17-50209

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