United States v. Angel Almendarez , 363 F. App'x 523 ( 2010 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                              JAN 29 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 08-50516
    Plaintiff - Appellee,               D.C. No. 2:08-cr-00120-R-1
    v.
    MEMORANDUM *
    ANGEL ALMENDAREZ,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Central District of California
    Manuel L. Real, District Judge, Presiding
    Argued and Submitted January 11, 2010
    Pasadena, California
    Before: GOODWIN, CANBY and O’SCANNLAIN, Circuit Judges.
    Angel Almendarez pled guilty to violating 
    18 U.S.C. § 922
    (g)(1) as a felon
    in possession of a firearm. The district court sentenced him to 46 months in federal
    detention. He appeals that sentence, raising several distinct challenges to the
    sentence itself and to the supervised release conditions the district court imposed.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    As the facts are known to the parties, we will not repeat them here except to the
    extent necessary to explain our decision.
    I
    Almendarez first contends that the district court improperly concluded that
    his prior conviction under California Penal Code § 69 1 constitutes a crime of
    violence within the meaning of U.S.S.G. § 2K2.1. We disagree. U.S.S.G.
    § 4B1.2(a)(1) defines a “crime of violence” as, in pertinent part, “any offense
    under federal or state law, punishable by imprisonment for a term exceeding one
    year, that has as an element the use, attempted use, or threatened use of physical
    force against the person of another.”2 Under the modified categorical approach
    first announced in Taylor v. United States, 
    495 U.S. 575
     (1990), we may look to a
    transcript of Almendarez’s plea colloquy to determine “whether the conduct for
    1
    The statute provides that
    Every person who attempts, by means of any threat or violence, to deter
    or prevent an executive officer from performing any duty imposed upon
    such officer by law, or who knowingly resists, by the use of force or
    violence, such officer, in the performance of his duty, is punishable by
    a fine not exceeding ten thousand dollars ($10,000), or by imprisonment
    in the state prison, or in a county jail not exceeding on year, or by both
    such fine and imprisonment.
    2
    Almendarez does not dispute that his conviction under California Penal
    Code § 69 is “punishable by imprisonment for a term exceeding one year.”
    U.S.S.G. § 4B1.2(a).
    2
    which [he] was convicted fits within the federal definition of [a crime of
    violence],” United States v. Snellenberger, 
    548 F.3d 699
    , 701 (9th Cir. 2008) (en
    banc) (per curiam). In his plea hearing, Almendarez pled no contest to an
    indictment charging him “with the crime of resisting an executive officer by means
    of violence.” This demonstrates that Almendarez’s crime involved the “use . . . of
    physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1), and,
    accordingly, we affirm the district court’s conclusion that Almendarez’s conviction
    under California Penal Code § 69 constitutes a crime of violence.
    II
    Almendarez next contends that the sentence the district court imposed was
    unreasonable because the district court did not explicitly discuss each of the 
    18 U.S.C. § 3553
    (a) factors. We disagree. A sentencing judge need not discuss each
    section 3553(a) factor in each case. Rita v. United States, 
    551 U.S. 338
    , 356–57
    (2007). Thus, the sentencing judge’s statement that Almendarez had received
    enough “new starts” demonstrates that he was aware of and applied the section
    3553(a) factors to reject Almendarez’s arguments in favor of a less-severe
    sentence. Accordingly, we conclude that the district court did not abuse its
    discretion by imposing a within-Guidelines sentence.
    III
    3
    Almendarez next challenges two of his supervised release conditions, and
    argues that they violate his Due Process rights. First, Almendarez contends that his
    supervised release condition prohibiting him from having contact with “associates”
    of members of the Black P-Stone Bloods and from entering areas associated with
    the gang is impermissibly vague. In United States v. Soltero, we held that a
    supervised release condition prohibiting a defendant from “associat[ing] with any
    known member of any criminal street gang” was not improperly vague or
    overbroad. 
    510 F.3d 858
    , 866 (9th Cir. 2007) (per curiam) (internal quotation
    marks omitted) (alteration in original). Accordingly, we reject Almendarez’s
    argument. Second, Almendarez contends that a supervised release condition
    requiring him to report to a parole officer within 72 hours of entering the United
    States violates his Fifth Amendment right against self incrimination. As
    Almendarez acknowledges, this claim is squarely foreclosed by our existing
    precedent. See United States v. Rodriguez-Rodriguez, 
    441 F.3d 767
     (9th Cir.
    2006).
    IV
    Finally, Almendarez claims that his sentence should be vacated because the
    government breached its obligations under his plea agreement by arguing that his
    conviction under California Penal Code § 69 is a crime of violence. The plea
    4
    agreement states that “[d]efendant and the USAO reserve the right to argue that
    additional specific offense characteristics, adjustments, and departures are
    appropriate” and that “defendant understands that the government believes that
    defendant’s conviction for Assault in violation of California Penal Code Section
    69, on or about August 14, 2006, may be a crime of violence.” Thus, the terms of
    the plea agreement permitted the government to argue that Almendarez’s prior
    conviction constitutes a crime of violence, and the government did not breach the
    plea agreement.
    V
    For the above reasons, the judgement of the district court is
    AFFIRMED.
    5