                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 18 2012

                                                                        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. 10-10582

               Plaintiff - Appellee,             D.C. No. 2:10-cr-00929-GMS

  v.
                                                 MEMORANDUM *
JAVIER HERNANDEZ-PEREZ, a.k.a.
Ricardo Jimenez Hernandez,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     G. Murray Snow, District Judge, Presiding

                                                       **
                              Submitted May 15, 2012

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

       Javier Hernandez-Perez appeals from the 33-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 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).
      Hernandez-Perez contends that the district court failed to recognize its

authority to reject the illegal reentry Guideline’s prior-conviction sentencing

enhancement on policy grounds. The record belies this contention. The district

court considered Hernandez-Perez’s policy and other mitigation arguments,

recognized that the Guidelines are advisory, imposed a sentence that was 24

months below the advisory Guidelines range, and found the circumstances

insufficient to justify a shorter sentence. See United States v. Ayala-Nicanor, 659

F.3d 744, 752-53 (9th Cir. 2011).

      Hernandez-Perez’s contention that his prior conviction for making a criminal

threat, in violation of section 422 of the California Penal Code, is not categorically

a crime of violence is foreclosed. See United States v. Villavicencio-Burruell, 608

F.3d 556, 563 (9th Cir. 2010).

      AFFIRMED.




                                           2                                      10-10582
