United States of America v. Francisco Jimenez-Arzate

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCISCO JIMENEZ-ARZATE,
Defendant - Appellant.
No. 12-50373
D.C. No. 3:12-cr-01421-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
Francisco Jimenez-Arzate appeals from the district court’s judgment and
challenges the 34-month sentence imposed following his guilty-plea conviction for
being a deported alien found in the United States, in violation of 8 U.S.C. § 1326.
FILED
JAN 24 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Jimenez-Arzate contends that the district court erred by applying a 12-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 in light of recent California case law that does not require the
intentional use of force for a conviction under section 245(a). This contention is
foreclosed by United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009).
Jimenez-Arzate’s argument that we are not bound by Grajeda is without merit.
See Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir. 2010) (a three-judge panel is
bound by circuit precedent unless it is “clearly irreconcilable” with intervening
higher authority); see also Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir.
2010) (concluding that Johnson v. United States, 559 U.S. 133 (2010), which
concerned a statute “akin to California’s simple battery statute,” did not undermine
this court’s prior conclusion that a conviction for willful infliction of corporal
injury upon a spouse or cohabitant was a categorical crime of violence).
Jimenez-Arzate also contends that the district court erred in imposing a
three-year term of supervised release in light of U.S.S.G. § 5D1.1(c) and Jimenez-
Arzate’s individual circumstances. The district court did not err. The record
reflects that the district court considered the 18 U.S.C. § 3553(a) sentencing
12-50373 2

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factors, including the need for deterrence. Moreover, the three-year term of
supervised release is substantively reasonable in light of the totality of the
circumstances, including Jimenez-Arzate’s criminal history and prior deportations.
See Gall v. United States, 552 U.S. 38, 51 (2007); see also U.S.S.G. § 5D1.1 cmt.
n.5.
AFFIRMED.
12-50373 3

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