                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 20 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10485

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00637-NVW-1

  v.
                                                 MEMORANDUM*
JOSE RAFAEL CHAVEZ-PACHECO,
AKA Rafael Pacheco Chavez, AKA J.
Rafael Chavez-Pacheco, AKA Rafael
Chavez-Pacheco,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                    Argued and Submitted November 19, 2014
                              Pasadena California

Before: KLEINFELD and WARDLAW, Circuit Judges, and KENNELLY,
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
      Jose Rafael Chavez-Pacheco (“Chavez”) appeals the district court’s

imposition of a twenty-four month sentence following his plea of guilty to

unlawful reentry in violation of 8 U.S.C. § 1326. We affirm.

      1. The district court correctly determined that assault with a deadly weapon

under California Penal Code § 245(a)(1) is categorically a “crime of violence”

under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). United States v.

Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). Contrary to Chavez’s contention,

the mens rea requirement for § 245(a)(1), as relevant here, was the same at the time

of his 1989 conviction and the time of the 1996 conviction analyzed in Grajeda.

At both times, California Penal Code § 245(a)(1) required proof that the defendant

willfully committed an act that by its nature would probably and directly result in

injury to another. See People v. Colantuono, 865 P.2d 704, 709 (Cal. 1994);

People v. Rocha, 479 P.2d 372, 376-77 (Cal. 1971).

      2. Chavez’s contention that Grajeda was abrogated by Ceron v. Holder, 747

F.3d 773 (9th Cir. 2014) (en banc), also lacks merit. We recently held that Ceron

did not abrogate Grajeda because in Ceron we addressed whether a conviction

under § 245(a)(1) is categorically a crime of moral turpitude, as opposed to a crime

of violence. United States v. Jimenez-Arzate, — F.3d —, 2015 WL 149802 (9th

Cir. Jan. 12, 2015).


                                          2
      3. Chavez also contends that under Apprendi v. New Jersey, 530 U.S. 466

(2000), the information was deficient because it failed to include the prior

conviction used to enhance his statutory maximum sentence under 8 U.S.C.

§ 1326(b)(1). Chavez’s argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 226-27 (1998). Apprendi did not overrule Almendarez-

Torres. See United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000).

      AFFIRMED.




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