United States of America v. Carlos Oregon-Mendoza

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARLOS OREGON-MENDOZA,
Defendant-Appellant.
Nos. 15-50455
15-50456
D.C. Nos. 3:14-cr-01523-BEN
3:10-cr-04723-BEN
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
In these consolidated appeals, Carlos Oregon-Mendoza appeals his bench-
trial conviction and the 64-month sentence imposed for being a removed alien
found in the United States, in violation of 8 U.S.C. § 1326, and the 24-month
consecutive sentence imposed upon revocation of supervised release. We have
* 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
SEP 29 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 15-50455 & 15-50456
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Oregon-Mendoza contends that his prior conviction for assault with a deadly
weapon under California Penal Code § 245(a)(1) is not a “crime of violence” for
purposes of 18 U.S.C. § 16(a) or U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014). He argues
that, therefore, the district court erred by denying his motion to dismiss under 8
U.S.C. § 1326(d) and by applying a 16-level enhancement to his offense level.
This argument is foreclosed. See United States v. Grajeda, 581 F.3d 1186, 1190-
91, 1197 (9th Cir. 2009) (violation of section 245(a)(1) “is categorically a crime of
violence”). Contrary to Oregon-Mendoza’s contention, our decision in Grajeda is
not “clearly irreconcilable” with Descamps v. United States, 133 S. Ct. 2276
(2013). See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
Oregon-Mendoza next contends that the revocation sentence is substantively
unreasonable. The sentence is not an abuse of discretion in light of the 18
U.S.C. § 3583(e) sentencing factors and the totality of the circumstances, including
Oregon-Mendoza’s breach of the court’s trust. See Gall v. United States, 552 U.S.
38, 51 (2007). Further, contrary to Oregon-Mendoza’s contention, the record
reflects that the district court relied on only proper sentencing factors. See United
States v. Miqbel, 444 F.3d 1173, 1181-82 (9th Cir. 2006).
AFFIRMED.

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