United States of America v. Francisco Heredia-Silva

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCISCO HEREDIA-SILVA,
Defendant-Appellant.
No. 17-50209
D.C. No. 3:16-cr-02622-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Francisco Heredia-Silva appeals his bench-trial conviction for being a
removed alien found in the United States, in violation of 8 U.S.C. § 1326. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Heredia-Silva contends that his prior conviction for making terrorist threats
* 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
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-50209
under California Penal Code § 422 is not a “crime of violence” for purposes of 18
U.S.C. § 16(a). He argues, therefore, that the district court erred by denying his
motion to dismiss the information under 8 U.S.C. § 1326(d). As Heredia-Silva
concedes, this argument is foreclosed. See Arellano Hernandez v. Lynch, 831 F.3d
1127, 1132 (9th Cir. 2016) (“[A]pplying our precedent, section 422 is categorically
a crime of violence.”). Heredia-Silva’s request that we sua sponte call for en banc
review of this precedent is denied.
AFFIRMED.

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