United States v. Jose Chavez-Pacheco , 593 F. App'x 713 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10485
Plaintiff - Appellee, D.C. No. 2:13-cr-00637-NVW-1
v.
MEMORANDUM*
JOSE RAFAEL CHAVEZ-PACHECO,
AKA Rafael Pacheco Chavez, AKA J.
Rafael Chavez-Pacheco, AKA Rafael
Chavez-Pacheco,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted November 19, 2014
Pasadena California
Before: KLEINFELD and WARDLAW, Circuit Judges, and KENNELLY,
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
Jose Rafael Chavez-Pacheco (“Chavez”) appeals the district court’s
imposition of a twenty-four month sentence following his plea of guilty to
unlawful reentry in violation of 8 U.S.C. § 1326. We affirm.
1. The district court correctly determined that assault with a deadly weapon
under California Penal Code § 245(a)(1) is categorically a “crime of violence”
under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). United States v.
Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). Contrary to Chavez’s contention,
the mens rea requirement for § 245(a)(1), as relevant here, was the same at the time
of his 1989 conviction and the time of the 1996 conviction analyzed in Grajeda.
At both times, California Penal Code § 245(a)(1) required proof that the defendant
willfully committed an act that by its nature would probably and directly result in
injury to another. See People v. Colantuono, 865 P.2d 704, 709 (Cal. 1994);
People v. Rocha, 479 P.2d 372, 376-77 (Cal. 1971).
2. Chavez’s contention that Grajeda was abrogated by Ceron v. Holder, 747
F.3d 773 (9th Cir. 2014) (en banc), also lacks merit. We recently held that Ceron
did not abrogate Grajeda because in Ceron we addressed whether a conviction
under § 245(a)(1) is categorically a crime of moral turpitude, as opposed to a crime
of violence. United States v. Jimenez-Arzate, — F.3d —, 2015 WL 149802 (9th
Cir. Jan. 12, 2015).
2
3. Chavez also contends that under Apprendi v. New Jersey, 530 U.S. 466(2000), the information was deficient because it failed to include the prior
conviction used to enhance his statutory maximum sentence under 8 U.S.C.
§ 1326(b)(1). Chavez’s argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998). Apprendi did not overrule Almendarez-
Torres. See United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000).
AFFIRMED.
3