United States of America v. Juan Lopez-Hernandez, a.k.a. Juan Hilario Lopez-Hernandez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN LOPEZ-HERNANDEZ, a.k.a. Juan
Hilario Lopez-Hernandez,
Defendant-Appellant.
No. 17-50189
D.C. No. 3:16-cr-01415-CAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Juan Lopez-Hernandez appeals from the district court’s judgment and
challenges his conviction for attempted reentry of a removed alien, in violation of
8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Lopez-Hernandez contends that the district court erred in denying his motion
* 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).
FILED
SEP 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 17-50189
to dismiss the information under 8 U.S.C. § 1326(d). We review de novo. See
United States v. Moriel-Luna, 585 F.3d 1191, 1196 (9th Cir. 2009). Lopez-
Hernandez argues that his conviction under California Penal Code § 243(c)(2),
which formed the basis of his initial removal in 2002, is not a crime of violence.
This argument is foreclosed. See United States v. Colon-Arreola, 753 F.3d 841,
844-45 (9th Cir. 2014) (holding that a conviction under California Penal Code
§ 243(c)(2) is a categorical crime of violence under U.S.S.G. § 2L1.2); see also
United States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th Cir. 2007) (definitions of
crime of violence in 18 U.S.C. § 16(a) and U.S.S.G. § 2L1.2 are “identical” so
cases interpreting one provision are applicable to other provision). Contrary to
Lopez-Hernandez’s contention, Colon-Arreola is not “clearly irreconcilable” with
Mathis v. United States, 136 S. Ct. 2243 (2016). See Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (en banc).
In light of this disposition, we do not reach the government’s arguments
regarding Lopez-Hernandez’s 2014 expedited removal order.
The government’s motion for judicial notice is denied.
AFFIRMED.

-- 2 of 2 --