                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 17 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10194

               Plaintiff - Appellee,             D.C. No. 4:07-cr-02042-FRZ


  v.                                             MEMORANDUM *

JESUS GARCIA-FERNANDEZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Frank R. Zapata, District Judge, Presiding

                            Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Jesus Garcia-Fernandez appeals from the 42-month sentence imposed

following his guilty-plea conviction for attempted re-entry after deportation, in




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      Garcia-Fernandez contends that the district court erred in applying a 16-level

“crime of violence” enhancement under U.S.S.G. § 2L1.2(b)(1)(a)(ii), based on his

prior robbery conviction, in violation of California Penal Code §§ 211 and

212.5(c). The district court did not err. See United States v. Becerill-Lopez, 541

F.3d 881, 890-93 (9th Cir. 2008) (holding that a conviction under California Penal

Code § 211 is categorically a “crime of violence” under the Guidelines).

Moreover, even if the district court had erred, Garcia-Fernandez has not

demonstrated that his substantial rights may have been affected. See United States

v. Waknine, 543 F.3d 546, 552 (9th Cir. 2008).

      AFFIRMED.




                                          2                                   10-10194
