United States of America v. Jesus Garcia-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NOT FOR PUBLICATION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.
JESUS GARCIA-FERNANDEZ,
Defendant - Appellant.
No. 10-10194
D.C. No. 4:07-cr-02042-FRZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted February 15, 2011**
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Jesus Garcia-Fernandez appeals from the 42-month sentence imposed
following his guilty-plea conviction for attempted re-entry after deportation, in
FILED
FEB 17 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-10194 2
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
Garcia-Fernandez contends that the district court erred in applying a 16-level
“crime of violence” enhancement under U.S.S.G. § 2L1.2(b)(1)(a)(ii), based on his
prior robbery conviction, in violation of California Penal Code §§ 211 and
212.5(c). The district court did not err. See United States v. Becerill-Lopez, 541
F.3d 881, 890-93 (9th Cir. 2008) (holding that a conviction under California Penal
Code § 211 is categorically a “crime of violence” under the Guidelines).
Moreover, even if the district court had erred, Garcia-Fernandez has not
demonstrated that his substantial rights may have been affected. See United States
v. Waknine, 543 F.3d 546, 552 (9th Cir. 2008).
AFFIRMED.

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