USA V. JAIME LOPEZ GONZALEZ, No. 16-10090 (9th Cir. 2016)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 19 2016 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. U.S. COURT OF APPEALS No. 16-10090 D.C. No. 3:15-cr-00490-SI MEMORANDUM* JAIME LOPEZ GONZALEZ, Defendant-Appellant. Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding Submitted December 14, 2016** Before: WALLACE, LEAVY, and FISHER, Circuit Judges. Jaime Lopez Gonzalez appeals from the district court’s judgment and challenges the 24-month sentence imposed following his guilty-plea conviction for illegal reentry following removal, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * 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). Lopez Gonzalez contends that the district court erred by enhancing his sentence on the basis that his prior conviction for willful infliction of corporal injury on a spouse or cohabitant under California Penal Code § 273.5 was a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015). He acknowledges that this claim is foreclosed by our holding in United States v. Laurico-Yeno, 590 F.3d 818, 823 (9th Cir. 2010). However, he argues that this holding has been undermined by Johnson v. United States, 135 S. Ct. 2551 (2015). We disagree. Johnson held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. See Johnson, 135 S. Ct. at 2557. Johnson did not address section 2L1.2’s definition of “crime of violence,” which does not have a residual clause. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2015). Accordingly, contrary to Lopez Gonzalez’s contention, Johnson is not “clearly irreconcilable” with our circuit precedent. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (three-judge panel is bound by circuit precedent unless that precedent is “clearly irreconcilable” with intervening higher authority). AFFIRMED. 2 16-10090
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