United States Court of Appeals, Ninth CircuitApr 28, 2011
430 Fed. Appx. 577 (9th Cir. 2011)

No. 10-50437.

Submitted April 20, 2011.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed April 28, 2011.

Robert Steven Huie, Bruce R. Castetter, Assistant U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.

Amy Frances Kimpel, 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, Michael M. Anello, District Judge, Presiding. D.C. No. 3:10-cr-00106-MMA-1.

Before: RYMER, THOMAS and PAEZ, Circuit Judges.


This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Juan Garcia-Morales appeals the sentence imposed following his guilty plea to attempted entry after deportation in violation of 8 U.S.C. § 1326. Garcia-Morales contends that the district court erred in determining that his prior conviction for making criminal threats in violation of Calif. Penal Code § 422 was a crime of violence warranting a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). As Garcia-Morales concedes, this contention is foreclosed by United States v. Villavicencio-Burmel, 608 F.3d 556 (9th Cir. 2010), which held that a § 422 violation is categorically a crime of violence.