United States of America v. Ramon Alberto Arana- Esquivel

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAMON ALBERTO ARANA-
ESQUIVEL,
Defendant - Appellant.
No. 07-50130
D.C. No. CR-06-01359-BTM
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted June 29, 2010**
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Ramon Alberto Arana-Esquivel appeals from the 57-month sentence
imposed following his guilty-plea conviction for being a deported alien found in
the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28
FILED
AUG 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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U.S.C. § 1291. We affirm, but remand to correct the judgment.
Arana-Esquivel contends that the district court erred by determining that his
prior conviction for assault with a semiautomatic firearm, in violation of California
Penal Code § 245(b), constituted a crime of violence under U.S.S.G. § 2L1.2,
because section 245(b) prohibits merely negligent or reckless conduct and does not
require specific intent. This contention is foreclosed. See United States v.
Grajeda, 581 F.3d 1186, 1192-97 (9th Cir. 2009).
Arana-Esquivel also contends that a conviction under section 245(b) is not a
categorical crime of violence because it can be based on California’s theory of
aiding and abetting, which is broader than the federal generic definition. This
contention is unpersuasive. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190-
94 (2007).
Finally, Arana-Esquivel contends that the district court erred by imposing a
sentence in excess of the two-year statutory maximum under 8 U.S.C. § 1326. He
contends that the avoidance of constitutional doubt doctrine limits the holding of
Almendarez-Torres v. United States, 523 U.S. 224 (1998), that Almendarez-Torres
has been overruled, and that section 1326(b) is unconstitutional. These contentions
are foreclosed. See United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007)
(en banc). Arana-Esquivel further contends that the district court improperly

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determined the date of his prior conviction, the date of his prior deportation, and
the temporal relationship between the two. These contentions are unpersuasive.
See id. at 847.
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062
(9th Cir. 2000), we remand the case to the district court with instructions that it
delete from the judgment the incorrect reference to section 1326(b). See United
States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte
to delete the reference to section 1326(b)).
AFFIRMED; REMANDED to correct judgment.

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