                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 05-10224
                Plaintiff-Appellee,           D.C. No.
               v.
                                         CR-04-00094-HDM/
                                                RAM
ANIBAL JOSE DIAZ-ARGUETA,
             Defendant-Appellant.           ORDER AND
                                             OPINION

       Appeal from the United States District Court
                for the District of Nevada
      Howard D. McKibben, District Judge, Presiding

                  Argued and Submitted
       January 13, 2006—San Francisco, California

                   Filed April 24, 2009

     Before: John T. Noonan, A. Wallace Tashima, and
            William A. Fletcher, Circuit Judges.

                 Opinion by Judge Noonan




                           4809
               UNITED STATES v. DIAZ-ARGUETA          4811




                       COUNSEL

Cynthia S. Hahn, Reno, Nevada, for the defendant-appellant.

R. Don Gifford, Assistant United States Attorney, for the
plaintiff-appellee.
4812            UNITED STATES v. DIAZ-ARGUETA
                           ORDER

  Our opinion, dated May 16, 2006, is hereby withdrawn.

   The petition for rehearing is DENIED. No further petitions
for rehearing will be entertained.


                          OPINION

NOONAN, Circuit Judge:

   Anibal Jose Diaz-Argueta (Diaz) appeals the sentence he
received from the district court after pleading guilty to ille-
gally reentering the United States following deportation in
violation of 8 U.S.C. § 1326. We affirm the sentence of the
district court.

                        PROCEDURE

   Diaz was indicted for having been an alien found in the
United States on June 29, 2004 after having been deported on
March 13, 1996. He pleaded guilty on September 7, 2004.
The Pre-Sentence Report reported that he had been convicted
in California in 1995 for assault with a firearm. In support, the
government submitted several documents from the Superior
Court of the State of California, County of San Bernardino.
After three sentencing hearings, the district court concluded
from the state court records that Diaz had pled guilty to
assault with a firearm, a felony, and that he had been con-
victed of that offense. The district court sentenced him at the
lower end of the Guidelines to three years and ten months’
imprisonment.

  Diaz appeals his sentence.

                          ANALYSIS

   The State Crime. Diaz points to the apparent mildness of
his state sentence — 109 days in the San Bernardino County
                UNITED STATES v. DIAZ-ARGUETA                4813
Jail and two years probation — and argues that he was con-
victed of a misdemeanor. The minute order of the state court,
relied on by the federal district court, is a judicial record that
can be relied upon to prove the contrary. United States v.
Snellenberger, 548 F.3d 699, 702 (9th Cir. 2008) (en banc).
The minute order showed that the “pronouncement of judg-
ment was withheld.” Under California law, when a defendant
pleads guilty and the court suspends the pronouncement of
judgment or imposition of sentence and grants probation, the
offense is regarded as a felony for all purposes until judgment
or sentence, and, if no judgment is pronounced, it remains a
felony. People v. Esparza, 61 Cal. Rptr. 167, 169 (1967).
Such is Diaz’s conviction here.

  [1] For a second reason, his appeal fails. The statute pro-
vides:

    § 245. Assault with deadly weapon or force likely
    to produce great bodily injury; punishment
    (a)(2) Any person who commits an assault upon the
    person of another with a firearm shall be punished
    by imprisonment in the state prison for two, three, or
    four years, or in a county jail for not less than six
    months and not exceeding one year, or by both a fine
    not exceeding ten thousand dollars ($10,000) and
    imprisonment.

Cal. Penal Code § 245(a)(2) (West 1996). In the parlance of
California law enforcement, a violation of the statute is a
“wobbler” that may be punished either as a felony or as a mis-
demeanor. As the United States Supreme Court explains,
“Under California law, a ‘wobbler’ is presumptively a felony
and remains a felony except when the discretion is actually
exercised to make the crime a misdemeanor.” Ewing v. Cali-
fornia, 538 U.S. 11, 16 (2003) (internal quotation marks omit-
ted).

  [2] California Penal Code § 17(b) provides two ways in
which a court may exercise such discretion. This statute dis-
4814            UNITED STATES v. DIAZ-ARGUETA
tinguishes between misdemeanor and felony convictions
under wobbler statutes in the following manner:

    When a crime is punishable, in the discretion of the
    court, by imprisonment in the state prison or by fine
    or imprisonment in the county jail, it is a misdemea-
    nor for all purposes under the following circum-
    stances:

         (1) After a judgment imposing a punish-
         ment other than imprisonment in state
         prison.

         ***

         (3) When the court grants probation to a
         defendant without imposition of sentence
         and at the time of granting probation, or on
         application of the defendant or probation
         officer thereafter, the court declares the
         offense to be a misdemeanor.

Cal. Penal Code § 17(b) (West 1996).

   [3] At oral argument of this appeal, counsel for Diaz stated
that “there was never a judgment entered.” Accordingly, the
first method of exercising discretion to reduce the felony to a
misdemeanor was not exercised by the state court. There is
nothing in the record to show that the second method was
used. The presumption that the conviction was of a felony has
not been overcome. See Garcia-Lopez v. Ashcroft, 334 F.3d
840, 844-45 (9th Cir. 2003); United States v. Qualls, 172 F.3d
1136, 1137-38 (9th Cir. 1999); United States v. Robinson, 967
F.2d 287, 292-93 (9th Cir. 1992). We therefore uphold the
district court’s determination, albeit on a basis different from
that on which it relied. Cf. United States v. Cortez-Arias, 403
F.3d 1111, 1114 n.7, as amended, 425 F.3d 547 (9th Cir.
2005).
               UNITED STATES v. DIAZ-ARGUETA             4815
  Diaz objects that the Terms and Conditions of Probation set
by the state court do not show him forbidden to possess fire-
arms as a felon. But he was forbidden to do so by operation
of law. See Cal. Penal Code § 12021(c)(1) (West 1996).

   [4] The State Crime as a Crime Of Violence. Diaz argues
that assault with a firearm is not a crime of violence because
he received a sentence of less than one year. He reaches this
conclusion by looking at the definition of “aggravated felony”
in 8 U.S.C. § 1101(a)(43)(F). This argument supposes that the
district court in sentencing Diaz referred to U.S.S.G.
§ 2L1.2(b)(1)(C), which provides for an enhancement for an
aggravated felony and which refers back to 8 U.S.C.
§ 1101(a)(43)(F) for the definition of a crime of violence to
be used in determining an aggravated felony.

   [5] The argument is ingenious but mistaken. Diaz was sen-
tenced by reference to U.S.S.G. § 2L1.2(b)(1)(A)(ii). We have
already held that a crime of violence need not be an aggra-
vated felony to qualify for the 16-level enhancement under
this guideline. See United States v. Pimentel-Flores, 339 F.3d
959, 960-61 (9th Cir. 2003).

   Diaz cites a footnote in Leocal v. Ashcroft, 543 U.S. 1, 11
& n.8 (2004), holding that an alien’s DUI conviction did not
qualify as a “crime of violence” under 18 U.S.C. § 16 and was
therefore not an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(F). Leocal does not touch on U.S.S.G.
§ 2L1.2(b)(l)(A)(ii) and so does not undermine Pimentel-
Flores. The Guidelines in that case and ours are focused not
on an aggravated felony but on a crime of violence.

   The Vitality of Almendarez-Torres. Diaz invites us not to
rely on Almendarez-Torres v. United States, 523 U.S. 224
(1998), which held that the government is not required to
charge as a factor in the indictment every fact increasing the
penalty. We have no reason to question Almendarez-Torres,
which is favorably cited in Shepard v. United States, 544 U.S.
4816            UNITED STATES v. DIAZ-ARGUETA
13, 26 (2005). See also United States v. Lopez-Torres, 443
F.3d 1182, 1186 (9th Cir. 2006) (noting that “[w]e have
repeatedly rejected [the] argument” “that we should decline to
follow the Supreme Court’s holding in Almendarez-Torres”),
abrogated on other grounds by Fernandez-Ruiz v. Gonzales,
466 F.3d 1121 (9th Cir. 2006) (en banc).

  The Sentencing Factors Set Out in 18 U.S.C. § 3553(a).
Invoking United States v. Booker, 543 U.S. 220, 260-61
(2005), Diaz argues that his sentence should be reviewed for
unreasonableness and in that light objects to the court’s fail-
ure to take into account all of the considerations set out to
guide sentencing in 18 U.S.C. § 3553(a). Instead, as in the old
mandatory Guidelines days, the court simply turned to the
Guidelines and used the sentencing range provided there.

  [6] The sentencing statute reads:

    § 3553. Imposition of a sentence

    (a) Factors to be considered in imposing a sen-
    tence. — The court shall impose a sentence suffi-
    cient, but not greater than necessary, to comply with
    the purposes set forth in paragraph (2) of this subsec-
    tion. The court, in determining the particular sen-
    tence to be imposed, shall consider —

    (1) the nature and circumstances of the offense and
    the history and characteristics of the defendant;

    (2) the need for the sentence imposed —

         (A) to reflect the seriousness of the offense,
         to promote respect for the law, and to pro-
         vide just punishment for the offense;

         (B) to afford adequate deterrence to crimi-
         nal conduct;
           UNITED STATES v. DIAZ-ARGUETA             4817
    (C) to protect the public from further
    crimes of the defendant; and

    (D) to provide the defendant with needed
    educational or vocational training, medical
    care, or other correctional treatment in the
    most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range
established for —

    (A) the applicable category of offense com-
    mitted by the applicable category of defen-
    dant as set forth in the guidelines —

       (i) issued by the Sentencing Commission
       pursuant to section 994(a)(1) of title 28,
       United States Code, subject to any
       amendments made to such guidelines by
       act of Congress (regardless of whether
       such amendments have yet to be incorpo-
       rated by the Sentencing Commission into
       amendments issued under section 994(p)
       of title 28); and

       (ii) that, except as provided in section
       3742(g), are in effect on the date the
       defendant is sentenced; or

    (B) in the case of a violation of probation
    or supervised release, the applicable guide-
    lines or policy statements issued by the
    Sentencing Commission pursuant to section
    994(a)(3) of title 28, United States Code,
    taking into account any amendments made
    to such guidelines or policy statements by
4818            UNITED STATES v. DIAZ-ARGUETA
          act of Congress (regardless of whether such
          amendments have yet to be incorporated by
          the Sentencing Commission into amend-
          ments issued under section 994(p) of title
          28);

    (5) any pertinent policy statement —

          (A) issued by the Sentencing Commission
          pursuant to section 994(a)(2) of title 28,
          United States Code, subject to any amend-
          ments made to such policy statement by act
          of Congress (regardless of whether such
          amendments have yet to be incorporated by
          the Sentencing Commission into amend-
          ments issued under section 994(p) of title
          28); and

          (B) that, except as provided in section
          3742(g), is in effect on the date the defen-
          dant is sentenced;

    (6)   the need to avoid unwarranted sentence dispari-
          ties among defendants with similar records who
          have been found guilty of similar conduct; and

    (7)   the need to provide restitution to any victims of
          the offense.

18 U.S.C. § 3553(a) (West Supp. 2006).

   [7] To comply with Booker’s requirement that the district
court “sufficiently consider” the factors listed in § 3553(a)
“does not necessitate a specific articulation of each factor sep-
arately, but rather a showing that the district court considered
the statutorily-designated factors in imposing a sentence.”
United States v. Knows His Gun, 438 F.3d 913, 918 (9th Cir.
2006). We assume that district judges know the law and
                 UNITED STATES v. DIAZ-ARGUETA                4819
understand their obligation to consider all of the § 3553(a)
factors, not just the Guidelines. United States v. Carty, 520
F.3d 984, 993 (9th Cir. 2008) (en banc).

   [8] In this case, the district court started out properly by
calculating on the record the applicable Guideline range. The
district court then stated that it had “carefully considered the
Presentence Report and the comments of counsel, and the
memorandum filed on behalf of the defendant.” Based on the
district court’s analysis, we are satisfied that the district court
properly considered the § 3553(a) factors.

  Accordingly, the sentence of the district court is
AFFIRMED.
