                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 21 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50209

                Plaintiff-Appellee,             D.C. No. 3:16-cr-02622-LAB

 v.
                                                MEMORANDUM*
FRANCISCO HEREDIA-SILVA,

                Defendant-Appellant.

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

                           Submitted August 15, 2018**

Before:      FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

      Francisco Heredia-Silva appeals his bench-trial conviction for being a

removed alien found in the United States, in violation of 8 U.S.C. § 1326. We

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

      Heredia-Silva contends that his prior conviction for making terrorist threats



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under California Penal Code § 422 is not a “crime of violence” for purposes of 18

U.S.C. § 16(a). He argues, therefore, that the district court erred by denying his

motion to dismiss the information under 8 U.S.C. § 1326(d). As Heredia-Silva

concedes, this argument is foreclosed. See Arellano Hernandez v. Lynch, 831 F.3d

1127, 1132 (9th Cir. 2016) (“[A]pplying our precedent, section 422 is categorically

a crime of violence.”). Heredia-Silva’s request that we sua sponte call for en banc

review of this precedent is denied.

      AFFIRMED.




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