                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                           No. 12-50373
             Plaintiff-Appellee,
                                                      D.C. No.
                     v.                         3:12-cr-01421-LAB-1

 FRANCISCO JIMENEZ-ARZATE,
          Defendant-Appellant.                         OPINION


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

                  Argued and Submitted
          November 19, 2014—Pasadena, California

                          Filed January 12, 2015

 Before: Andrew J. Kleinfeld and Kim McLane Wardlaw,
 Circuit Judges, and Matthew F. Kennelly, District Judge.*

                           Per Curiam Opinion




  *
     The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
2             UNITED STATES V. JIMENEZ-ARZATE

                           SUMMARY**


                           Criminal Law

    The panel affirmed a sentence for illegal reentry into the
United States after deportation in a case in which the district
court found that the defendant’s prior conviction for violation
of Calif. Penal Code § 245(a)(1) is categorically a crime of
violence for federal sentencing purposes.

    The panel rejected the defendant’s contentions (1) that
United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009)
(holding that a conviction under § 245(a)(1) is categorically
a crime of violence), is no longer good law in light of People
v. Aznavoleh, 148 Cal. Rptr. 3d 901 (Ct. App. 2012), and
People v. Wyatt, 229 P.3d 156 (Cal. 2010); and (2) that Ceron
v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc), abrogates
Grajeda.

   The panel held that there was justification for the district
court’s exercise of discretion in imposing supervised release.


                             COUNSEL

Vincent J. Brunkow (argued), Kara Lee Hartzler, Federal
Defenders of San Diego, Inc., San Diego, California, for
Defendant-Appellant.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            UNITED STATES V. JIMENEZ-ARZATE                  3

Mark R. Rehe (argued), Andrew R. Haden, United States
Attorney’s Office, San Diego, California, for Plaintiff-
Appellee.


                         OPINION

PER CURIAM:

    Francisco Jimenez-Arzate pleaded guilty to having
illegally re-entered the United States after having previously
been deported. The district court sentenced him to 34 months
in prison and three years of supervised release. He timely
appeals his sentence.

    Jimenez-Arzate argues that the district court erred in
finding that his prior conviction for violation of California
Penal Code § 245(a)(1) is categorically a crime of violence
for federal sentencing purposes. He contends that United
States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009), is no longer
good law in light of People v. Aznavoleh, 148 Cal. Rptr. 3d
901 (Ct. App. 2012), and People v. Wyatt, 229 P.3d 156 (Cal.
2010). Jimenez-Arzate also argues that Ceron v. Holder,
747 F.3d 773 (9th Cir. 2014) (en banc), abrogates Grajeda.

    We disagree. Aznavoleh involved a defendant who
intentionally ran a red light while racing another car down the
street even though he saw a car entering the intersection on
the green. People v. Aznavoleh, 148 Cal. Rptr. 3d 901, 905,
908 (Ct. App. 2012). The defendant made no effort to stop
despite a passenger warning him that he needed to stop. Id.
at 904. The California Court of Appeal upheld the trial
court’s finding that the defendant met the willfulness element
of assault under California Penal Code § 245(a)(1), which the
4           UNITED STATES V. JIMENEZ-ARZATE

California Court of Appeal defined as intentionality. Id. at
906.

    Wyatt involved a father who, while play wrestling with
his infant son, struck the boy with such force that he killed
him. People v. Wyatt, 229 P.3d 156, 157 (Cal. 2010). The
Wyatt court upheld the father’s conviction for involuntary
manslaughter and assault on a child causing death because
“substantial evidence established that defendant knew he was
striking his young son with his fist, forearm, knee, and elbow,
and that he used an amount of force a reasonable person
would realize was likely to result in great bodily injury.” Id.
As did the California Court of Appeal in Aznavoleh, the
California Supreme Court in Wyatt explained that “a
defendant guilty of assault must be aware of the facts that
would lead a reasonable person to realize that a battery would
directly, naturally and probably result from his conduct. He
may not be convicted based on facts he did not know but
should have known.” Id. at 159 (quoting People v. Williams,
29 P.3d 197, 203 (Cal. 2001)).

    Contrary to Jimenez-Arzate’s argument, Aznavoleh did
not hold that an automobile accident stemming from merely
reckless driving may result in a conviction under § 245(a)(1).
The defendant in Aznavoleh engaged in street racing,
heedlessly disregarding a perceived likelihood of death or
grave injury to others. Likewise, in Wyatt, a reasonable
person would have recognized the dangers of striking a child
with the deadly force used, even if the defendant was not
subjectively aware of the risks of his “play wrestling” with
the child in that manner.

   Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc),
addresses the question of whether a conviction under
            UNITED STATES V. JIMENEZ-ARZATE                   5

California Penal Code § 245(a)(1) is categorically a crime of
moral turpitude. It does not address the question of whether
a conviction under § 245(a)(1) is categorically a crime of
violence. As such, it does not abrogate Grajeda’s holding
that a conviction under § 245(a)(1) is categorically a crime of
violence.

    Jimenez-Arzate also argues that the district court abused
its discretion in imposing a term of supervised release
because he would be deported as an illegal alien upon his
release. Here, the district court made an individualized
finding that supervised release was warranted because of
Jimenez-Arzate’s consistent history of sneaking back into the
United States after deportation. The district court specifically
noted that Jimenez-Arzate had previously been deported three
times and that “[t]he three wags of fingers in his face saying
‘stay out, stay out or you’re going to be subject to
prosecution’ didn’t do any good.” The district judge also
noted that he “can’t trust [Jimenez-Arzate’s] assurance he’s
not going to come back” because “[h]e probably gave that
assurance on three prior occasions, and yet he’s back again
committing crimes.” The district judge concluded that
supervised release was necessary to protect the public and
deter Jimenez-Arzate from returning to the United States.
There was justification for the district court’s exercise of
discretion in imposing supervised release.

   AFFIRMED.
