United States of America v. TRAYVON SMITH, AKA Trayvon Vincent Smith

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TRAYVON SMITH, AKA Trayvon Vincent
Smith,
Defendant-Appellant.
No. 18-10225
D.C. No.
1:17-cr-00070-DAD-BAM-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Trayvon Smith appeals from the district court’s judgment and challenges the
46-month sentence imposed following his guilty-plea conviction for being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). 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).
FILED
MAY 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-10225
Smith contends that the district court erred in determining that his prior
conviction for assault with a firearm in violation of California Penal Code
§ 245(a)(2) is a categorical crime of violence under U.S.S.G. §§ 2K2.1(a)(4)(A)
and 4B1.2(a)(1). Smith’s argument is foreclosed by United States v. Vasquez-
Gonzalez, 901 F.3d 1060, 1068 (9th Cir. 2018). Contrary to Smith’s argument,
Vasquez-Gonzalez addressed and rejected his argument that section 245 does not
require the intentional use of force against the person of another.1 See id. at 1067-
68. Accordingly, the district court properly treated Smith’s prior assault conviction
under section 245(a)(2) as a categorical crime of violence when calculating the
Guidelines range. See U.S.S.G. § 2K2.1(a)(4)(A).
AFFIRMED.
1 Vasquez-Gonzalez addressed a conviction under section 245(a)(1), while the
conviction in this case was sustained under section 245(a)(2). The difference is
immaterial because the two subsections “proscribe the same conduct, the only
difference being the type of weapon involved.” United States v. Heron-Salinas,
566 F.3d 898, 899 (9th Cir. 2009).

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