United States of America v. Manuel Pineda-Fernandez, a.k.a. Jorge Pineda-Fernandez

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MANUEL PINEDA-FERNANDEZ,
a.k.a. Jorge Pineda-Fernandez,
Defendant - Appellant.
No. 10-50591
D.C. No. 3:10-cr-02276-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted April 17, 2012**
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Manuel Pineda-Fernandez appeals from the 70-month sentence imposed
following his guilty-plea conviction for attempted entry after deportation, in
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
FILED
APR 20 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-50591 2
we affirm.
Pineda-Fernandez contends that the district court erred in applying a
16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A), because assault with a
deadly weapon under section 245(a) of the California Penal Code is not a
categorical crime of violence. This contention is foreclosed by United States v.
Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). Pineda-Fernandez’s argument that
we are not bound by Grajeda in light of the subsequent case of Johnson v. United
States, 130 S. Ct. 1265 (2010), is without merit. See Newdow v. Lefevre, 598 F.3d
638, 644 (9th Cir. 2010) (a three-judge panel may ignore circuit precedent only
where it is “clearly irreconcilable” with intervening higher authority);
Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir. 2010) (concluding that
Johnson, which concerned a statute “akin to California's simple battery statute,”
did not undermine the court’s prior conclusion that a conviction for willful
infliction of corporal injury upon a spouse or cohabitant was a categorical crime of
violence).
AFFIRMED.

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