                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 11 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 16-10105

                Plaintiff-Appellee,             D.C. No. 4:15-cr-00984-RM

 v.
                                                MEMORANDUM*
GUSTAVO DAVALOS TRUEBA,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Rosemary Marquez, District Judge, Presiding

                             Submitted May 8, 2017**

Before:      REINHARDT, LEAVY, and NGUYEN, Circuit Judges.

      Gustavo Davalos Trueba appeals from the district court’s judgment and

challenges the 38-month sentence imposed following his guilty-plea conviction for

reentry of a removed alien, 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).
      Davalos Trueba contends that the district court erred by enhancing his

sentence on the basis that his prior conviction of willful infliction of corporal

injury on a spouse or cohabitant under California Penal Code § 273.5 was a “crime

of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2014). This claim is foreclosed

by United States v. Laurico-Yeno, 590 F.3d 818, 823 (9th Cir. 2010). Contrary to

Davalos Treuba’s claim, Johnson v. United States, 135 S. Ct. 2551 (2015) is not

“clearly irreconcilable” with this precedent. 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).

      Davalos Trueba also contends that the district court erred in applying the

enhancement because his conviction under section 273.5 does not qualify as a

felony. This claim is without merit. A violation of section 273.5 is punishable by

up to four years of imprisonment. See Cal. Penal Code § 273.5(a). It thus meets

the definition of “felony.” See U.S.S.G. § 2L1.2 cmt. n.2 (2014) (“‘[F]elony’

means any federal, state, or local offense punishable by imprisonment for a term

exceeding one year.”).

      AFFIRMED.




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