Mendoza-Lopez

MEMORANDUM *

Defendant Rafael Mendoza-Lopez appeals from his sentence, following a guilty plea, for transporting illegal aliens, assaulting a federal officer with a dangerous weapon, and being an illegal alien found in the United States after a prior deportation and conviction. We affirm.

1. Defendant first argues that the district court erred by imposing a six-level enhancement under U.S.S.G. § 2Ll.l(b)(4) because the court did not find that Defendant intended to use his car as a weapon to harm Officer Shine. Assuming, without deciding, that intent is required, Defendant cannot prevail because he admitted to the requisite intent.

In the plea agreement, Defendant expressly stipulated to the enhancement for “Dangerous Weapon Used” under U.S.S.G. § 2A2.2(b)(2)(B) as being an “applicable” factor. Defendant’s argument is that the § 2Ll.l(b)(4) enhancement should be construed as identical to the § 2A2.2(b)(2)(B) enhancement with respect to the intent element. Even if he were correct, his agreement that the latter applies necessarily means that the intent element of the former is met.

2. Defendant next argues that the court erred by imposing adjustments under both § 3C1.2 and §…

concurring.

I concur in the majority’s disposition but not in the first section of its analysis.

*885 In his plea agreement with the government, Mendoza-Lopez agreed that the sentencing enhancement provision in U.S.S.G. § 2A2.2(b)(2)(B) could be applied with respect to his assault crime. Although Federal Rule of Criminal Procedure 11(c)(1)(C) provides that stipulations regarding sentencing provisions are binding once a plea agreement is accepted by the district court, the plea agreement in this case did not refer to the sentencing enhancement provision in U.S.S.G. § 2Ll.l(b)(4)(B) and therefore did not require the district court to impose that enhancement. See United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.2002) (“The courts enforce the literal terms of the plea agreement, but construe ambiguities in favor of the defendant, ordinarily placing on the government responsibility for any lack of clarity.”) (internal quotation marks and citations omitted).

The majority interprets Mendoza-Lopez’s stipulation to the § 2A2.2(b)(2)(B) enhancement as a factual admission of intent to injure, but reliance on such an implied factual stipulation is inappropriate for several…