United States of America v. Sergio Saldivar Gutierrez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SERGIO SALDIVAR GUTIERREZ,
Defendant-Appellant.
No. 18-35036
D.C. Nos. 1:16-cv-01127-AA
1:11-cr-30009-AA-3
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Sergio Saldivar Gutierrez appeals from the district court’s order denying his
28 U.S.C. § 2255 motion to vacate the 180-month mandatory minimum sentence
imposed pursuant to the Armed Career Criminal Act (ACCA). We have
* 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
MAY 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 18-35036
jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v. Hill,
915 F.3d 669, 673 (9th Cir. 2019), we affirm.
Gutierrez contends that he is entitled to relief because his four prior
convictions for assault with a deadly weapon under California Penal Code § 245(a)
are not violent felonies under the ACCA, 18 U.S.C. § 924(e)(2)(B)(i). Gutierrez’s
argument is foreclosed by United States v. Vasquez-Gonzalez, 901 F.3d 1060,
1065-68 (9th Cir. 2018), which was decided while this appeal was pending. In
Vasquez-Gonzalez, this court held that section 245(a)(1) is a categorical crime of
violence under 18 U.S.C. § 16(a), which is materially identical to 18 U.S.C.
§ 924(e)(2)(B)(i). See id. at 1068; see also United States v. Studhorse, 883 F.3d
1198, 1203 (9th Cir.), cert. denied, 139 S. Ct. 127 (2018) (18 U.S.C. § 16(a) and
18 U.S.C. § 924(e)(2)(B)(i) have “near-identical language”). Accordingly,
Vasquez-Gonzalez controls here and the district court did not err in denying
Gutierrez’s motion.
AFFIRMED.

-- 2 of 2 --