Rodriguez-Nicolas

MEMORANDUM **

Defendant-Appellant Remigio Rodriguez-Nicolas appeals his thirty-eight month sentence for being a deported alien found in the United States in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

At the sentencing hearing, the district court noted that a prior thirty month sentence was insufficient to deter Rodriguez-Nicolas from illegally re-entering the United States. ER at 238. The district court explicitly stated that, irrespective of the Guidelines, it would impose the same thirty-eight month sentence based on § 3553 discretionary factors. Id. Thus, any error made in applying the Guidelines is necessarily harmless. See United States v. Menyweather, 447 F.3d 625, 633-34 (9th Cir .2006).

Contrary to Rodriguez-Nicolas’s contention, his 1991 California Penal Code § 211 robbery conviction is a “crime of violence,” meriting a sixteen-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States v. Pereira-Salmeron, 337 F.3d 1148, 1151 (9th Cir.2003) (holding that offenses specifically listed as examples of crimes of violence in the commentary to U.S.S.G. § 2L1.2 are “inherently deemed” to be crimes…