U.S. Court of Appeals for the Ninth Circuit, 2009

United States v. Pena-Aguilar

United States v. Pena-Aguilar
U.S. Court of Appeals for the Ninth Circuit · Decided March 25, 2009 · Hawkins, Leavy, Tashima
320 F. App'x 603

United States v. Pena-Aguilar

Opinion of the Court

MEMORANDUM **

Jose Francisco Pena-Aguilar appeals from the 41-month sentence imposed following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Pena-Aguilar contends that the district court erred by applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) because his statements at a prior state change of plea hearing were insufficient to establish that his prior state conviction for aggravated assault was a crime of violence. Because the factual basis set forth at the prior state change of plea hearing establishes that Pena-Aguilar fought with and struck a police officer, we conclude that the offense was a crime of violence. See U.S.S.G § 2L1.2, cmt. n. 1(B)(iii); see also United States v. Smith, 390 F.3d 661, 664-66 (9th Cir. 2004), amended by 405 F.3d 726 (9th Cir. 2005).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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