United States of America v. MELVIN WHITEHEAD, AKA Archie Parks, AKA Marvin Roy Whitehead, AKA Melvin Ray…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MELVIN WHITEHEAD, AKA Archie
Parks, AKA Marvin Roy Whitehead, AKA
Melvin Ray Whitehead, AKA Melvin Ray
Y,
Defendant-Appellant.
No. 18-10194
D.C. No.
1:17-cr-00177-DAD-BAM-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted October 22, 2019
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and BADE, Circuit Judges.
Melvin Whitehead pleaded guilty to possessing a firearm as a felon, in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court found that
Whitehead’s prior conviction for battery with injury on a peace officer, in violation
of California Penal Code (“C.P.C.”) § 243(c)(2), qualified as a categorical crime of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
OCT 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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violence under the United States Sentencing Guidelines (“U.S.S.G.”) §§ 2K2.1(a)
and 4B1.2(a) and applied an increased base offense level. Whitehead appeals his
sentence and argues that his prior conviction should not qualify as a crime of
violence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo
whether a defendant’s prior conviction qualifies as a crime of violence under the
Sentencing Guidelines, United States v. Gasca-Ruiz, 852 F.3d 1167, 1174 (9th Cir.
2017) (en banc) (citations omitted), and we affirm.
“In order to determine whether a conviction qualifies as a crime of violence
as defined in U.S.S.G. § 4B1.2(a)(1), [the court applies] the categorical approach set
forth in Taylor v. United States, 495 U.S. 575, 600–02 (1990).” United States v.
Perez, 932 F.3d 782, 784 (9th Cir. 2019). In United States v. Colon-Arreola, 753
F.3d 841, 843–45 (9th Cir. 2014), this court applied Taylor’s categorical approach
and held that a violation of C.P.C. § 243(c)(2) is a crime of violence, as defined in
the Sentencing Guidelines. Thus, Colon-Arreola is binding precedent in which this
court has already decided the issue that Whitehead presents in this case. See Hart v.
Massanari, 266 F.3d 1155, 1170–71 (9th Cir. 2001). As such, Hart forecloses
Whitehead’s argument that Colon-Arreola incorrectly applied Taylor’s categorical
approach. Id.
AFFIRMED.

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