                                                                            FILED
                            NOT FOR PUBLICATION                              APR 20 2012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. 10-50591

               Plaintiff - Appellee,             D.C. No. 3:10-cr-02276-LAB

  v.
                                                 MEMORANDUM *
MANUEL PINEDA-FERNANDEZ,
a.k.a. Jorge Pineda-Fernandez,

               Defendant - Appellant.



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

                             Submitted April 17, 2012 **

Before:        LEAVY, PAEZ, and BEA, Circuit Judges.

       Manuel Pineda-Fernandez appeals from the 70-month sentence imposed

following his guilty-plea conviction for attempted entry after deportation, in

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


          *
             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 affirm.

      Pineda-Fernandez contends that the district court erred in applying a

16-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. This contention is foreclosed by United States v.

Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). Pineda-Fernandez’s argument that

we are not bound by Grajeda in light of the subsequent case of Johnson v. United

States, 130 S. Ct. 1265 (2010), is without merit. See Newdow v. Lefevre, 598 F.3d

638, 644 (9th Cir. 2010) (a three-judge panel may ignore circuit precedent only

where it is “clearly irreconcilable” with intervening higher authority);

Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir. 2010) (concluding that

Johnson, which concerned a statute “akin to California's simple battery statute,”

did not undermine the court’s prior conclusion that a conviction for willful

infliction of corporal injury upon a spouse or cohabitant was a categorical crime of

violence).

      AFFIRMED.




                                           2                                   10-50591
