United States of America v. Victor Vallin-Jauregui

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
VICTOR VALLIN-JAUREGUI,
Defendant-Appellant.
No. 08-50457
D.C. 3:08-cr-0018-W-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted June 11, 2010
Pasadena, California
Before: TROTT and W. FLETCHER, Circuit Judges, and MAHAN, District
Judge.**
Appellant Victor Vallin-Jauregui (hereinafter “Vallin”) appeals his sentence
of 51 months for one count of being a deported alien found in the United States, in
violation of 8 U.S.C. § 1326. Vallin also appeals the application of a sentencing
FILED
JUL 14 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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enhancement imposed under U.S.S.G. § 2L1.2(b)(1)(A) for commission of a crime
of violence, based upon his prior conviction for assault with a firearm in violation
of Cal. Penal Code § 245(a)(2).
We have jurisdiction under 28 U.S.C. § 1291, and review all sentencing
decisions, whether within or outside the guideline range, for abuse of discretion.
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (citing Gall v.
United States, 552 U.S 38, 51 (2007)). In reviewing a sentence, this court must
consider whether the district court committed significant procedural error, and
whether the sentence was substantively reasonable. Gall, 552 U.S. at 51.
We affirm the district court’s sentence of 51 months because the district
court recognized and noted defendant’s arguments under § 3553(a) and his
objections to the 16-level enhancement. We also find that the record sufficiently
demonstrates, apart from a single inadvertent misstatement, that the district court
was fully aware that there was no plea agreement and did not consider the
guidelines mandatory.
As to application of Vallin’s prior conviction as a crime of violence
enhancement under U.S.S.G. § 2L1.2(b)(1)(A), in recent cases this court has held
that Cal. Penal Code § 245(a)(2) categorically constitutes a crime of violence. See
United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009); United States v. Heron-

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Salinas, 566 F.3d 898 (9th Cir. 2009); see also United States v. Jennen, 596 F.3d
594, 601 (9th Cir. 2010). Accordingly, the district court did not err in applying a
16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A).
AFFIRMED.

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