                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 24 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50373

               Plaintiff - Appellee,             D.C. No. 3:12-cr-01421-LAB

  v.
                                                 MEMORANDUM*
FRANCISCO JIMENEZ-ARZATE,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                            Submitted January 21, 2014**

Before:        CANBY, SILVERMAN, and PAEZ, Circuit Judges.

       Francisco Jimenez-Arzate appeals from the district court’s judgment and

challenges the 34-month sentence imposed following his guilty-plea conviction for

being a deported alien found in the United States, in violation of 8 U.S.C. § 1326.


          *
             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).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Jimenez-Arzate contends that the district court erred by applying a 12-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(A) because assault with a deadly

weapon under section 245(a) of the California Penal Code is not a categorical

crime of violence in light of recent California case law that does not require the

intentional use of force for a conviction under section 245(a). This contention is

foreclosed by United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009).

Jimenez-Arzate’s argument that we are not bound by Grajeda is without merit.

See Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir. 2010) (a three-judge panel is

bound by circuit precedent unless it is “clearly irreconcilable” with intervening

higher authority); see also Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir.

2010) (concluding that Johnson v. United States, 559 U.S. 133 (2010), which

concerned a statute “akin to California’s simple battery statute,” did not undermine

this court’s prior conclusion that a conviction for willful infliction of corporal

injury upon a spouse or cohabitant was a categorical crime of violence).

      Jimenez-Arzate also contends that the district court erred in imposing a

three-year term of supervised release in light of U.S.S.G. § 5D1.1(c) and Jimenez-

Arzate’s individual circumstances. The district court did not err. The record

reflects that the district court considered the 18 U.S.C. § 3553(a) sentencing


                                           2                                     12-50373
factors, including the need for deterrence. Moreover, the three-year term of

supervised release is substantively reasonable in light of the totality of the

circumstances, including Jimenez-Arzate’s criminal history and prior deportations.

See Gall v. United States, 552 U.S. 38, 51 (2007); see also U.S.S.G. § 5D1.1 cmt.

n.5.

       AFFIRMED.




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