                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 23 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITES STATES OF AMERICA,                        No. 11–10608

              Plaintiff - Appellee,              D.C. No. 4:11-cr-01234-JGZ-
                                                 BPV-1
  v.

JESUS NAVIA-PEREZ,                               MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                           Submitted October 19, 2012 **
                             San Francisco, California

Before: FISHER, TALLMAN, and CALLAHAN, Circuit Judges.

       Jesus Navia-Perez (“Navia”) appeals his conviction by guilty plea to illegal

reentry after deportation in violation of 8 U.S.C. § 1326. Following his guilty plea,




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
Navia received a below-Guidelines sentence of 51 months in prison followed by

three years of supervised release based on his offense level of 22 and criminal

history category of V. This included a 16-level increase for his prior conviction of

preventing/dissuading a witness by threat or force, a crime of violence pursuant to

U.S.S.G. § 2L1.2(b)(1)(A). On appeal, Navia argues that the court erred in

applying the 16-level crime of violence enhancement because the prior conviction

of preventing/dissuading a witness by threat or force is not a crime of violence. He

also contends that the district court erred in imposing two criminal history points

for Navia’s predicate illegal entry conviction, and in failing to establish the

appropriate Guidelines range. Finally, Navia contends that his 51-month sentence

is substantially unreasonable. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.1

      1. Navia argues that his conviction for preventing/dissuading a witness with

threat or force is not a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A) because

it requires only a “knowing and malicious” mens rea, rather than an “intentional”

mens rea. Because Navia conceded in the district court that his prior conviction

was a crime of violence subject to the 16-level enhancement, his objection on



      1
             Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                           2
appeal is reviewed for plain error under United States v. Olano, 507 U.S. 725, 731-

32 (1993).

      Here, there was no plain error. We have held that mere recklessness or

negligence are insufficient to satisfy the mens rea requirement for a crime of

violence. See United States v. Grajeda, 581 F.3d 1186, 1190-91 (9th Cir. 2009).

We have never held, however, that the knowing and malicious use or threat of

force is categorically insufficient to satisfy the mens rea requirement. In fact, we

have previously concluded, albeit not in the context of California Penal Code

§ 136.1(c)(1), that certain state felonies requiring a “knowing” or “knowing and

malicious” mens rea are crimes of violence under U.S.S.G. § 2L1.2. See, e.g.,

United States v. Melchor-Meceno, 620 F.3d 1180, 1184 (9th Cir. 2010)

(concluding that menacing under Colorado state law, which provides that “[a]

person commits the crime of menacing if, by any threat or physical action, he or

she knowingly places or attempts to place another person in fear of imminent

serious bodily injury,” is a crime of violence under U.S.S.G. § 2L1.2); United

States v. Velasquez-Reyes, 427 F.3d 1227, 1230 (9th Cir. 2005) (concluding that

arson under Washington state law, which requires an explosion to have been

“knowingly and maliciously” set, was a crime of violence because although

generic arson requires a “willful and malicious burning” of property, the court


                                           3
could discern no “meaningful distinction between ‘knowing’ and ‘willful’ in this

context”).

      Because we have never held that the “knowing and malicious” threat or use

of force is categorically insufficient to satisfy the mens rea requirement for a crime

of violence, nor have we held that California Penal Code § 136.1(c)(1) is not a

crime of violence, the district court did not plainly err in applying a 16-level crime

of violence enhancement in this case.

      2. The district court did not err in applying two criminal history points for

Navia’s predicate illegal entry conviction. Under U.S.S.G. § 4A1.1(b), a court is to

add two points to a defendant’s criminal history calculation “for each prior

sentence of imprisonment of at least sixty days” that was not counted in subpart (a)

as a sentence “exceeding one year and one month.” Generally, “sentences for

misdemeanors and petty offenses are counted.” U.S.S.G. § 4A1.2(c); see also

United States v. Grob, 625 F.3d 1209, 1213 (9th Cir. 2010). Navia asserts, but

fails to demonstrate, that his conviction for illegal entry is substantively similar to

loitering, an excludable offense. See U.S.S.G. § 4A1.1(c)(2). Even if Navia had

met his burden, any error was harmless because his criminal history category of V

and the resulting Guidelines range would be the same even if the illegal entry

conviction were not counted.


                                            4
      3. Navia contends that the district court “committed ‘procedural error’

when it failed to calculate the Guideline range.” However, before imposing the

sentence, the district court recognized the Guidelines range of 77-96 months. In

sentencing Navia to 51 months, the district court noted that this was effectively a

four-level reduction to offense level 18, which has a Guidelines range of 51-63

months. Thus, the district court properly calculated the Guidelines range. In any

event, Navia has not shown a reasonable probability that a more express

calculation of the Guidelines range on the record would have resulted in a different

sentence. See United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).

      4. Navia contends that his 51-month sentence is unreasonable because his

sentence for the prior conviction on the same offense was 180 days. Navia’s prior

sentence for a misdemeanor illegal entry was not for the “exact same offense,”

because his current sentence is for illegal re-entry after deportation, a felony.

Moreover, Navia’s prior lenient sentence does not undermine the reasonableness of

his current sentence. As Navia’s counsel noted at the sentencing hearing, the prior

180-day sentence was based on a faulty Guidelines calculation that did not

properly include the 16-level enhancement. Further, the district court considered

the PSR and the 18 U.S.C. § 3553(a) factors in choosing a downward variance to a

sentence it believed was fair. Navia has failed to demonstrate that the sentence is


                                           5
unreasonable or that the district court abused its discretion.

      The district court’s judgment is AFFIRMED.




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