United States of America v. Jorge Garcia-Navarro

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Brian M. Cogan, U.S. District Judge for the Eastern**
District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE GARCIA-NAVARRO,
Defendant - Appellant.
No. 10-50337
D.C. No. 3:09-cr-03954-BEN-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted May 3, 2011
Pasadena, California
Before: GOODWIN and WARDLAW, Circuit Judges, and COGAN, District
Judge.**
Jorge Garcia-Navarro (Garcia) appeals his conviction for attempted illegal
reentry after prior deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
FILED
FEB 16 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Garcia argues that his conviction for domestic abuse under California Penal
Code § 273.5 does not qualify as an aggravated felony, and he therefore was
improperly placed in expedited removal proceedings. Under 8 U.S.C.
§ 1101(a)(43)(F), an aggravated felony is defined as any “crime of violence,” as
defined by 8 U.S.C. § 16(a), when the conviction results in a prison term of more than
one year. Garcia was sentenced to two years in state prison for his § 273.5 conviction.
Our recent opinion in United States v. Ayala-Nicanor, 659 F.3d 744 (9th Cir.
2011), forecloses Garcia’s argument that a conviction under § 273.5 no longer
qualifies as a “crime of violence.” In Ayala-Nicanor, we re-affirmed our prior holding
in United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010), that a conviction
under § 273.5 qualifies as a “crime of violence” under 8 U.S.C. § 16(a). 659 F.3d at
751–52. The district court properly denied Garcia’s motion to dismiss the indictment
because Garcia was unable to show that any of the alleged due process defects in his
underlying deportation proceeding resulted in prejudice.
Garcia argues that he should not be required to show prejudice because the
expedited deportation proceedings deprived him of his right to counsel. As we held
in United States v. Reyes-Bonilla, prejudice can not be presumed based on the
violation of the right to counsel that Garcia asserts, because Garcia had been convicted
of an aggravated felony. United States v. Reyes-Bonilla, No. 10-50361, __ F.3d __,
slip op. 1151, 1173, 2012 WL 360771 at *10 (9th Cir. Feb. 6, 2011) (“We therefore

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hold that in order to mount a successful collateral attack on a prior removal order
under § 1326(d), an alien who was convicted of an aggravated felony and was not
properly advised of his right to counsel or did not waive this right must show that he
was actually prejudiced by this due process violation.”).
Garcia also argues that the district court should not have applied a sixteen-level
sentencing enhancement because none of his prior crimes qualified as crimes of
violence. The illegal reentry Sentencing Guidelines’ provision recommends a
sentencing enhancement of sixteen-levels if a defendant has previously been deported
after a felony conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A
“crime of violence” is defined in the Guidelines commentary as including any offense
“under federal, state, or local law that has as an element the use, attempted use, or
threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2,
cmt. n.1(B)(iii). Ayala-Nicanor again forecloses Garcia’s argument, as we explicitly
held that a conviction under § 273.5 qualifies as a crime of violence warranting a
sixteen-level sentencing enhancement. Because at least one of Garcia’s prior crimes

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The district court also concluded that Garcia’s prior convictions for assault1
with a deadly weapon, in violation of California Penal Code § 245(a)(1), and
unlawful sexual intercourse with a minor under the age of sixteen, in violation of
California Penal Code § 261.5(d), qualified as prior crimes of violence warranting
a sixteen-level sentencing enhancement. Because we conclude that Garcia’s
conviction under § 273.5 qualifies as a crime of violence, we do not reach Garcia’s
arguments that his other criminal convictions do not qualify.
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qualified as a crime of violence, the district court properly imposed the sixteen-level
sentencing enhancement.1
AFFIRMED.

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