                                                                           FILED
                             NOT FOR PUBLICATION                           MAY 21 2014

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



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10116

                Plaintiff - Appellee,            D.C. No. 4:11-cr-01998-CKJ

  v.
                                                 MEMORANDUM*
JUAN ELISEA-GONZALEZ,

                Defendant - Appellant.


                     Appeal from the United States District Court
                              for the District of Arizona
                     Marvin E. Aspen, District Judge, Presiding**

                              Submitted May 13, 2014***

Before:         CLIFTON, BEA, and WATFORD, Circuit Judges.

       Juan Elisea-Gonzalez appeals from the district court’s judgment and

challenges the 75-month sentence imposed following his guilty-plea conviction for



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The Honorable Marvin E. Aspen, United States District Judge for the
Northern District of Illinois, sitting by designation.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction

under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

      Elisea-Gonzalez makes various allegations of error, including that the

district court erred by failing to sua sponte award him a third-level reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1(b). By joint motion, the

parties acknowledge that remand for resentencing is warranted in light of a 2013

amendment to the commentary accompanying U.S.S.G. § 3E1.1(b). See U.S.S.G.

§ 3E1.1 cmt. n.6. The parties request, however, that the appeal proceed as to

Elisea-Gonzalez’s challenge concerning the district court’s application of a 16-

level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). We grant the parties’ motion.

      Elisea-Gonzalez first challenges the 16-level enhancement on the ground

that it results in impermissible double counting. This contention is foreclosed. See

United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (per

curian). Elisea-Gonzalez also challenges the 16-level enhancement as per se

unreasonable, arguing that the enhancement is neither “empirically sound” nor

based on Congressional intent. We have previously observed that the enhancement

under section 2L1.2(b) implements Congressional intent, United States v.

Ramirez-Garcia, 269 F.3d 945, 947-48 (9th Cir. 2001), and “serves the legitimate

government interest of deterring illegal reentry by those who have committed

drug-related and violent crimes,” see United States v. Ruiz-Chairez, 493 F.3d 1089,


                                           2                                    12-10116
1091 (9th Cir. 2007). Moreover, we have explained that, post-Booker, policy-

based arguments concerning the Guidelines may be used to attack the

reasonableness of a particular sentence, but not to challenge a provision of the

Guidelines “in isolation.” See United States v. Barsumyan, 517 F.3d 1154, 1158-

59 (9th Cir. 2008). Therefore, we reject Elisea-Gonzalez’s per se challenge to the

16-level enhancement.

      VACATED and REMANDED for resentencing.




                                          3                                    12-10116
