                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 24 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-50098

              Plaintiff-Appellee,                D.C. No.
                                                 3:13-cr-04514-BEN-8
 v.

GEORGE GARIBAY, AKA Scooby,                      MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted January 11, 2017
                               Pasadena, California

Before: KOZINSKI and WATFORD, Circuit Judges, and BENNETT,** District
Judge.

      We reject George Garibay’s contention that attempted murder under

California law is not a “crime of violence” for the purposes of the Sentencing

Guidelines’ career offender provision. U.S.S.G. § 4B1.1 (2015). The commentary

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
                                                                            Page 2 of 2
to the “crime of violence” definition in § 4B1.2 lists attempted murder among the

enumerated offenses that qualify as crimes of violence.

      The kill zone theory does not render attempted murder under California law

broader than the generic form of the offense. The elements of both the California

and the generic form of attempted murder include a specific intent to kill. See

Braxton v. United States, 500 U.S. 344, 351 n.* (1991); People v. Stone, 205 P.3d

272, 275 (Cal. 2009); cf. United States v. Albino-Loe, 747 F.3d 1206, 1214 (9th

Cir. 2014). The kill zone theory does not allow for an attempted murder conviction

in the absence of that mental state requirement. Rather, it merely explains that

when a defendant chooses a method of killing that creates a zone of fatal danger,

the jury may infer that the defendant intended to kill an alleged victim in that zone.

Stone, 205 P.3d at 276–78. Garibay has failed to identify a single jurisdiction

rejecting this inference or an application of California’s kill zone theory that

criminalized conduct as attempted murder that most jurisdictions would not.

      AFFIRMED.
