United States v. Javier Hernandez-Perez

MEMORANDUM

Javier Hernandez-Perez appeals from the 33-month sentence imposed following his guilty-plea conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Hernandez-Perez contends that the district court failed to recognize its authority to reject the illegal reentry Guideline’s prior-conviction sentencing enhancement on policy grounds. The record belies this contention. The district court considered Hernandez-Perez’s policy and other mitigation arguments, recognized that the Guidelines are advisory, imposed a sentence that was 24 months below the advisory Guidelines range, and found the circumstances insufficient to justify a shorter sentence. See United States v. Ayala-Nicanor, 659 F.3d 744, 752-53 (9th Cir. 2011).

Hernandez-Perez’s contention that his prior conviction for making a criminal threat, in violation of section 422 of the California Penal Code, is not categorically a crime of violence is foreclosed. See United States v. Villavicencio-Burruel, 608 F.3d 556, 563 (9th Cir.2010).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by…