Ayala-Nicanor

Alberto Ayala-Nicanor (Ayala) appeals his 70-month below-Guidelines sentence of incarceration for illegal reentry after a prior deportation, in violation of 8 U.S.C. § 1326 (a) and (b).

The district court increased Ayala’s base offense level by sixteen points because it concluded that Ayala’s conviction for willful infliction of corporal injury on a spouse, California Penal Code § 273.5, is a categorical crime of violence under U.S. Sen-fencing Guidelines (U.S.S.G.) § 2L1.2. In so doing, the court relied on our 2010 decision in United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir.2010), which held that § 273.5 is a categorical crime of violence warranting a sixteen-level increase under the Sentencing Guidelines. Ayala urges us to conclude that we are not bound by Laurico-Yeno because the Supreme Court’s subsequent decision in Johnson v. United States, — U.S. ——, 130 S.Ct. 1265 , 176 L.Ed.2d 1 (2010), is irreconcilable intervening authority in that it redefines the meaning of the term “crime of violence.”

Ayala also asserts procedural error, contending that the district court “never responded” to Ayala’s policy challenge to the illegal reentry Guideline requiring a…