United States of America v. Jaime Lopez Gonzalez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAIME LOPEZ GONZALEZ,
Defendant-Appellant.
No. 16-10090
D.C. No. 3:15-cr-00490-SI
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Jaime Lopez Gonzalez appeals from the district court’s judgment and
challenges the 24-month sentence imposed following his guilty-plea conviction for
illegal reentry following removal, in violation of 8 U.S.C. § 1326. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
* 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
DEC 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-10090
Lopez Gonzalez contends that the district court erred by enhancing his
sentence on the basis that his prior conviction for willful infliction of corporal
injury on a spouse or cohabitant under California Penal Code § 273.5 was a “crime
of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015). He acknowledges that
this claim is foreclosed by our holding in United States v. Laurico-Yeno, 590 F.3d
818, 823 (9th Cir. 2010). However, he argues that this holding has been
undermined by Johnson v. United States, 135 S. Ct. 2551 (2015). We disagree.
Johnson held that the residual clause of the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2)(B)(ii), was unconstitutionally vague. See Johnson, 135 S. Ct. at 2557.
Johnson did not address section 2L1.2’s definition of “crime of violence,” which
does not have a residual clause. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2015).
Accordingly, contrary to Lopez Gonzalez’s contention, Johnson is not “clearly
irreconcilable” with our circuit precedent. See Miller v. Gammie, 335 F.3d 889,
893 (9th Cir. 2003) (en banc) (three-judge panel is bound by circuit precedent
unless that precedent is “clearly irreconcilable” with intervening higher authority).
AFFIRMED.

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