                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 31 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 16-50011

                Plaintiff-Appellee,             D.C. No. 8:15-cr-00072-CJC

 v.
                                                MEMORANDUM*
GERARDO ROSALES MARCIAL,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                             Submitted May 24, 2017**

Before:      THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

      Gerardo Rosales Marcial appeals from the district court’s judgment and

challenges the 48-month sentence imposed following his guilty-plea conviction for

being an illegal alien found in the United States following deportation, in violation

of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Marcial contends that the district court erred by applying a 16-level

enhancement to his offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015)

because his prior conviction for making a criminal threat, in violation of California

Penal Code § 422, is not a “crime of violence.” As Marcial acknowledges, this

argument is foreclosed. See United States v. Villavicencio-Burruel, 608 F.3d 556,

563 (9th Cir. 2010). We remain bound by Villavicencio-Burruel. See Miller v.

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (three-judge panel is bound

by circuit precedent unless that precedent is “clearly irreconcilable” with

intervening higher authority).

      AFFIRMED.




                                          2                                   16-50011
