United States v. Antonio Ambrosio-Rubira , 668 F. App'x 249 ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50308
Plaintiff-Appellee, D.C. No.
3:14-cr-01934-MMA-1
v.
ANTONIO AMBROSIO-RUBIRA, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-50310
Plaintiff-Appellee, D.C. No.
3:14-cr-07061-MMA-1
v.
ANTONIO AMBROSIO-RUBIRA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted August 4, 2016
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: REINHARDT, KOZINSKI, and WARDLAW, Circuit Judges.
Antonio Ambrosio-Rubira appeals the sentence imposed after he pled guilty
to one count of illegal reentry in violation of 8 U.S.C. § 1326. The district court
determined that Ambrosio-Rubira’s prior conviction for assault with a deadly
weapon in violation of California Penal Code § 245 qualified as a “crime of
violence” within the meaning of United States Sentencing Guideline § 2L1.2 and
therefore applied a 12-level upward adjustment. After calculating the Guidelines
range as 30 to 37 months, the district court sentenced Ambrosio-Rubira to 30
months. Because the illegal reentry also violated the terms of Ambrosio-Rubira’s
supervised release, imposed following a 2010 conviction, the district court
sentenced him to an additional eight months, with six months running concurrent
to the § 1326 sentence. We have jurisdiction under 8 U.S.C. §1291, and we affirm.
1. The Supreme Court’s decisions in Descamps v. United States, 133 S. Ct.
2276 (2013) and Mathis v. United States, 136 S. Ct. 2243 (2016) are not “clearly
irreconcilable” with our decision in United States v. Grajeda, 581 F.3d 1186 (9th
Cir. 2009). Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003). In Grajeda, we
applied the elements-based categorical approach the Supreme Court established in
Taylor v. United States, 495 U.S. 575 (1990), and concluded that California Penal
Code § 245 is “categorically a crime of violence.” Grajeda, 581 F.3d at 1197.
2
Neither Descamps nor Mathis altered Taylor’s holding setting forth the pure
categorical approach; rather, those decisions clarified when the modified
categorical approach applies. See Mathis, 136 S. Ct. at 2251–54; Descamps, 133
S. Ct. at 2283–86. Because Grajeda—like this case—involves only the pure
categorical approach, it remains good law. See Grajeda, 581 F.3d at 1189.
2. The district court adequately explained the basis for the sentence imposed
for Ambrosio-Rubira’s supervised release violation. At sentencing, the district
court reviewed the § 3553(a) factors, listened to defense counsel’s argument,
concisely explained its reasoning, and imposed a sentence at the low end of the
Guidelines range with all but two months running concurrent to the § 1326
sentence. Nothing more was required. See United States v. Laurienti, 731 F.3d
967, 975 (9th Cir. 2013); United States v. Vasquez-Cruz, 692 F.3d 1001, 1008 (9th
Cir. 2012); United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010).
AFFIRMED.
3