                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 16 2012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. 10-50337

              Plaintiff - Appellee,              D.C. No. 3:09-cr-03954-BEN-1

  v.
                                                 MEMORANDUM *
JORGE GARCIA-NAVARRO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                        Argued and Submitted May 3, 2011
                              Pasadena, California

Before: GOODWIN and WARDLAW, Circuit Judges, and COGAN, District
Judge.**

       Jorge Garcia-Navarro (Garcia) appeals his conviction for attempted illegal

reentry after prior deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Brian M. Cogan, U.S. District Judge for the Eastern
District of New York, sitting by designation.
      Garcia argues that his conviction for domestic abuse under California Penal

Code § 273.5 does not qualify as an aggravated felony, and he therefore was

improperly placed in expedited removal proceedings.                 Under 8 U.S.C.

§ 1101(a)(43)(F), an aggravated felony is defined as any “crime of violence,” as

defined by 8 U.S.C. § 16(a), when the conviction results in a prison term of more than

one year. Garcia was sentenced to two years in state prison for his § 273.5 conviction.

      Our recent opinion in United States v. Ayala-Nicanor, 659 F.3d 744 (9th Cir.

2011), forecloses Garcia’s argument that a conviction under § 273.5 no longer

qualifies as a “crime of violence.” In Ayala-Nicanor, we re-affirmed our prior holding

in United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010), that a conviction

under § 273.5 qualifies as a “crime of violence” under 8 U.S.C. § 16(a). 659 F.3d at

751–52. The district court properly denied Garcia’s motion to dismiss the indictment

because Garcia was unable to show that any of the alleged due process defects in his

underlying deportation proceeding resulted in prejudice.

      Garcia argues that he should not be required to show prejudice because the

expedited deportation proceedings deprived him of his right to counsel. As we held

in United States v. Reyes-Bonilla, prejudice can not be presumed based on the

violation of the right to counsel that Garcia asserts, because Garcia had been convicted

of an aggravated felony. United States v. Reyes-Bonilla, No. 10-50361, __ F.3d __,

slip op. 1151, 1173, 2012 WL 360771 at *10 (9th Cir. Feb. 6, 2011) (“We therefore
hold that in order to mount a successful collateral attack on a prior removal order

under § 1326(d), an alien who was convicted of an aggravated felony and was not

properly advised of his right to counsel or did not waive this right must show that he

was actually prejudiced by this due process violation.”).

      Garcia also argues that the district court should not have applied a sixteen-level

sentencing enhancement because none of his prior crimes qualified as crimes of

violence.   The illegal reentry Sentencing Guidelines’ provision recommends a

sentencing enhancement of sixteen-levels if a defendant has previously been deported

after a felony conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A

“crime of violence” is defined in the Guidelines commentary as including any offense

“under federal, state, or local law that has as an element the use, attempted use, or

threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2,

cmt. n.1(B)(iii). Ayala-Nicanor again forecloses Garcia’s argument, as we explicitly

held that a conviction under § 273.5 qualifies as a crime of violence warranting a

sixteen-level sentencing enhancement. Because at least one of Garcia’s prior crimes




                                          3
qualified as a crime of violence, the district court properly imposed the sixteen-level

sentencing enhancement.1

      AFFIRMED.




      1
        The district court also concluded that Garcia’s prior convictions for assault
with a deadly weapon, in violation of California Penal Code § 245(a)(1), and
unlawful sexual intercourse with a minor under the age of sixteen, in violation of
California Penal Code § 261.5(d), qualified as prior crimes of violence warranting
a sixteen-level sentencing enhancement. Because we conclude that Garcia’s
conviction under § 273.5 qualifies as a crime of violence, we do not reach Garcia’s
arguments that his other criminal convictions do not qualify.

                                          4
