Opinion
No. 08-50496.
Argued and Submitted October 8, 2009.
Filed May 27, 2010.
Christopher Alexander, Mark R. Rehe, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Vincent James Brunkow, Esquire, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, William Q. Hayes, District Judge, Presiding. D.C. No. 3:08-cr-01452-WQH-1.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Ricardo Rios-Perez appeals the 57-month sentence he received for attempted reentry after deportation in violation of 8 U.S.C. 8 1326, challenging both the categorization of his California attempted murder conviction as one for a crime of violence and the constitutionality of his sentence. We affirm.
We have rejected each of Rios-Perez's arguments that the offense of attempted murder under California law is not a crime of violence under the categorical approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). First, the "slight act" that California requires is equivalent to the "substantial step" in the generic version of attempt. See United States v. Saavedra-Velazquez, 578 F.3d 1103, 1110 (9th Cir. 2009). Second, whether there are affirmative defenses is irrelevant to our analysis under the categorical approach. See United States v. Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010) ("The availability of an affirmative defense is not relevant to the categorical analysis.").
We have also rejected Rios-Perez's remaining arguments: that Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has been overruled or abrogated; and that 8 U.S.C. § 1326(b) is unconstitutional. See, e.g., United States v. Gomez-Mendez, 486 F.3d 599, 606 (9th Cir. 2007).