                                                                               FILED
                            NOT FOR PUBLICATION                                OCT 31 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10558

              Plaintiff - Appellee,              D.C. No. 2:11-cr-01269-SRB-1

  v.
                                                 MEMORANDUM*
WALTER ADILIO AJIATAS-
MAZARIEGOS,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Gerald E. Rosen, District Judge, Presiding

                      Argued and Submitted October 15, 2012
                            San Francisco, California

Before: SCHROEDER and BEA, Circuit Judges, and RESTANI, Judge.**

       Walter Ajiatas-Mazariegos appeals the 42-month sentence he received after

pleading guilty to illegal reentry in violation of 8 U.S.C. § 1326(a). The district



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
court rejected the plea agreement, which would have resulted in a sentence at the

low end of the applicable sentencing guideline range, and the defendant chose not

to withdraw his plea.

      His principle argument on appeal is that the district court should not have

applied an 8-level enhancement for his prior misdemeanor conviction for assault

on a federal officer. See 18 U.S.C. § 111(a). He contends the conviction was not

for a “crime of violence.” 18 U.S.C. § 16(a). United States v. Chapman, 528 F.3d

1215, 1219–20 (9th Cir. 2008), however, holds that a violation of section 111(a)

requires an assault, making it categorically a “crime of violence.”

      Appellant contends on appeal that Chapman was decided after his section

111(a) conviction and that therefore at the time of the conviction the law was

unclear. He argues that as a result the government cannot rely on the categorical

approach. When he objected to the enhancement in the district court, however, the

government responded with an Addendum to the Presentence Report (“PSR”) that

described the facts contained in the underlying plea agreement to show that he

engaged in a forcible assault that would support a “crime of violence” finding

under the modified categorical approach.

      While Appellant now contends that the government should have provided

the actual underlying plea agreement pursuant to Shepard v. United States, 544


                                           2
U.S. 13, 26 (2005), he made no objection in the district court either to the

Addendum or to excerpts of the plea agreement cited therein. The district court’s

application of the enhancement was not plainly erroneous because it relied on the

PSR’s description of the plea agreement, a document that is acceptable for

modified categorical approach analysis under Shepard. See United States v.

Castillo-Marin, 684 F.3d 914, 920 n.3 (9th Cir. 2007); United States v. Gonzales-

Apanicio, 663 F.3d 419, 433 (9th Cir. 2011).

      Appellant also contends the district court abused its discretion in rejecting

the plea agreement and sentencing above the guideline range. The district court

explained it was doing so because the PSR understated the Appellant’s criminal

history. There was no abuse of discretion because of Appellant’s lengthy criminal

history and substantial sentences. See In re Ellis, 356 F.3d 1198, 1209 (9th Cir.

2004) (en banc) (holding that a district court may reject a plea agreement when it

“was not in the best interest of society given [the defendant’s] criminal history”);

United States v. Connelly, 156 F.3d 978 (9th Cir. 1998) (“serious” uncounted

criminal conduct justifies departure from guideline range).

      AFFIRMED.




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