                                                                              FILED
                           NOT FOR PUBLICATION                                APR 23 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50189

              Plaintiff - Appellee,              D.C. No. 3:12-cr-05021-LAB-1

  v.
                                                 MEMORANDUM*
JUAN RODRIGUEZ-FRIAS,

              Defendant - Appellant.


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

                        Argued and Submitted April 8, 2014
                               Pasadena, California

Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.

       Juan Rodriguez-Frias appeals the sentence imposed on him following his

guilty plea to illegal re-entry after deportation in violation of 8 U.S.C. § 1326. We

affirm. Because the parties are familiar with the history of this case, we need not

recount it here.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                           I

      The district court did not abuse its discretion by applying a four-level fast-

track departure as a guide to calculate its 18 U.S.C. § 3553(a) variance. Because

Rodriguez-Frias’s claim is that the district court erred in its method of calculating

the Sentencing Guideline range, we review his argument as a procedural challenge

to sentencing. See United States v. Fitch, 659 F.3d 788, 796 (9th Cir. 2011).

Because Rodriguez-Frias did not raise before the district court the specific

challenge he now asserts on appeal, we review for plain error. United States v.

Gonzalez-Zotelo, 556 F.3d 736, 738-39 (9th Cir. 2009). Therefore, Rodriguez-

Frias must establish that: “(1) there was error; (2) the error was plain; (3) the error

affected substantial rights.” Id. at 739 (citation omitted).

      Rodriguez-Frias contends that the district court improperly considered the

four-level fast-track departure when determining how much to vary the sentence

under 18 U.S.C. § 3553. However, the court expressly noted that the fast-track

departure was only a minor consideration, and a review of the transcript, when

considered in its entirety, indicates that the district court’s variance was primarily

motivated by its concern with two authorized sentencing goals: protecting the

public and promoting deterrence. The sentence was imposed in light of Rodriguez-

Frias’s long recidivist record, and the district court explicitly recognized the


                                          -2-
parsimony principle in imposing the sentence. The district court did not abuse its

discretion, much less commit plain error, in the imposition of the sentence.

                                         II

      The district court did not commit plain error in imposing an 8-level “crime

of violence” enhancement. Rodriguez-Frias argues that a case decided after his

sentencing, Descamps v. United States, 133 S. Ct. 2276 (2013), bars imposition of

the 8-level enhancement. But Rodriguez-Frias did not challenge the enhancement

before the district court; in fact, he affirmatively requested it. Therefore, we deem

it appropriate to review the district court’s imposition of the enhancement for plain

error. See United States v. Castillo-Marin, 684 F.3d 914, 918-19 (9th Cir. 2012).1

      Our prior precedent forecloses Rodriguez-Frias’s argument. We have

consistently held that residential burglary under California Penal Code § 459

involves a “substantial risk” of the use of force, thus satisfying the requirements of

18 U.S.C. § 16(b). United States v. Ramos–Medina, 706 F.3d 932, 937 (9th Cir.



      1
         We acknowledge our discretion to review issues raised for the first time de
novo on appeal when “(1) there are exceptional circumstances why the issue was
not raised in the trial court; (2) new issues have become relevant while the appeal
was pending because of change in the law; (3) the issue presented is purely one of
law and the opposing party will suffer no prejudice as a result of the failure to raise
the issue in the trial court.” United States v. Echavarria-Escobar, 270 F.3d 1265,
1267-68 (9th Cir. 2001). However, we decline to exercise our discretion to do so
in this case.

                                          -3-
2012), cert. denied, 134 S. Ct. 64 (2013); Kwong v. Holder, 671 F.3d 872, 878 (9th

Cir. 2011); Lopez–Cardona v. Holder, 662 F.3d 1110, 1112–14 (9th Cir. 2011);

United States v. Becker, 919 F.2d 568, 571 (9th Cir. 1990).

         Rodriguez-Frias argues, with some force, that Descamps overrules this line

of authority. However, in the absence of an intervening Supreme Court or en banc

decision or statutory change, a three-judge panel cannot reconsider or overrule

circuit precedent. See Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011). For

a three-judge panel to overrule prior circuit precedent on the basis of an

intervening Supreme Court decision, the opinion must have “undercut the theory or

reasoning underlying the prior circuit precedent in such a way that the cases are

clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en

banc).

         In Descamps, the Supreme Court addressed the definition of a violent felony

for purposes of determining whether a previous conviction qualified under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B). The Court

specifically declined to address whether the crime qualified under the ACCA’s

“residual clause,” contained in § 924(e)(2)(B)(ii). See Descamps, 133 S. Ct. at

2293 n.6. This case involves a violation of 8 U.S.C. § 1326 and the definition of

violence in the residual clause contained in § 16(b), which has slightly different


                                          -4-
language than the residual clause in § 924(e)(2)(B)(ii). Therefore, Descamps is not

on its face clearly irreconcilable with our prior precedent. Accordingly, as a three-

judge panel, we decline Rodriguez-Frias’s invitation to overrule our existing

precedent, especially on plain error review.

      Given our resolution of this case, we need not–and do not–opine on the

merits of the argument, nor on the availability of any other remedy, including a

motion under 18 U.S.C. § 2255.



      AFFIRMED.




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