                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JUL 14 2010

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

UNITED STATES OF AMERICA                         No. 08-50457

              Plaintiff-Appellee,                D.C. 3:08-cr-0018-W-1
  v.
                                                 MEMORANDUM*
VICTOR VALLIN-JAUREGUI,

              Defendant-Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                   Thomas J. Whelan, District Judge, Presiding

                       Argued and Submitted June 11, 2010
                              Pasadena, California

Before: TROTT and W. FLETCHER, Circuit Judges, and MAHAN, District
Judge.**

       Appellant Victor Vallin-Jauregui (hereinafter “Vallin”) appeals his sentence

of 51 months for one count of being a deported alien found in the United States, in

violation of 8 U.S.C. § 1326. Vallin also appeals the application of a sentencing


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
enhancement imposed under U.S.S.G. § 2L1.2(b)(1)(A) for commission of a crime

of violence, based upon his prior conviction for assault with a firearm in violation

of Cal. Penal Code § 245(a)(2).

      We have jurisdiction under 28 U.S.C. § 1291, and review all sentencing

decisions, whether within or outside the guideline range, for abuse of discretion.

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (citing Gall v.

United States, 552 U.S 38, 51 (2007)). In reviewing a sentence, this court must

consider whether the district court committed significant procedural error, and

whether the sentence was substantively reasonable. Gall, 552 U.S. at 51.

      We affirm the district court’s sentence of 51 months because the district

court recognized and noted defendant’s arguments under § 3553(a) and his

objections to the 16-level enhancement. We also find that the record sufficiently

demonstrates, apart from a single inadvertent misstatement, that the district court

was fully aware that there was no plea agreement and did not consider the

guidelines mandatory.

      As to application of Vallin’s prior conviction as a crime of violence

enhancement under U.S.S.G. § 2L1.2(b)(1)(A), in recent cases this court has held

that Cal. Penal Code § 245(a)(2) categorically constitutes a crime of violence. See

United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009); United States v. Heron-


                                          2
Salinas, 566 F.3d 898 (9th Cir. 2009); see also United States v. Jennen, 596 F.3d

594, 601 (9th Cir. 2010). Accordingly, the district court did not err in applying a

16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A).



AFFIRMED.




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