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United States of America v. Alberto

September 14, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ALBERTO AYALA-NICANOR, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding D.C. No. 3:09-cr-00420-WQH-1

The opinion of the court was delivered by: Wardlaw, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

May 3, 2011-Pasadena, California

Before: Alfred T. Goodwin and Kim McLane Wardlaw, Circuit Judges, and Brian M. Cogan, District Judge.*fn1

Opinion by Judge Wardlaw

OPINION

Alberto Ayala-Nicanor (Ayala) appeals his 70-month below-Guidelines sentence of incarceration for illegal re-entry after a prior deportation, in violation of 8 U.S.C. § 1326(a) and (b).

The district court increased Ayala's base offense level by sixteen points because it concluded that Ayala's conviction for willful infliction of corporal injury on a spouse, California Penal Code § 273.5, is a categorical crime of violence under U.S. Sentencing Guidelines (U.S.S.G.) § 2L1.2. In so doing, the court relied on our 2010 decision in United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010), which held that § 273.5 is a categorical crime of violence warranting a sixteen-level increase under the Sentencing Guidelines. Ayala urges us to conclude that we are not bound by Laurico-Yeno because the Supreme Court's subsequent decision in Johnson v. United States, ___ U.S. ___, 130 S. Ct. 1265 (2010), is irreconcilable intervening authority in that it redefines the meaning of the term "crime of violence."

Ayala also asserts procedural error, contending that the district court "never responded" to Ayala's policy challenge to the illegal re-entry Guideline requiring a sixteen-point sentencing enhancement for certain prior convictions. Because we conclude that Laurico-Yeno remains good law and that the district court provided a reasoned explanation for increasing Ayala's offense level by sixteen, we affirm.

I.

We have jurisdiction over Ayala's timely appeal under 28 U.S.C. § 1291. We review the district court's interpretation of the Sentencing Guidelines, including whether a crime qualifies as a "crime of violence" under U.S.S.G. § 2L1.2, de novo.

United States v. Bolanos-Hernandez, 492 F.3d 1140, 1141 (9th Cir. 2007). We generally review "the district court's application of the Sentencing Guidelines to the facts of a case for abuse of discretion." United States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008). However, since Ayala did not object below to the sufficiency of the court's explanation for its sentencing determination, we ...


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