                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JUL 15 2015

                                                                          MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA,                        No. 14-10414               U.S. COURT OF APPEALS



              Plaintiff - Appellee,              D.C. No. 4:13-cr-00692-JGZ-
                                                 LAB-1
 v.

MAURICIO ORTEGA-CAZARES, AKA                     MEMORANDUM*
Mauricio Ortega-Cazarez,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Jennifer G. Zipps, District Judge, Presiding

                             Submitted July 9, 2015**
                             San Francisco, California

Before: GILMAN,*** GRABER, and WATFORD, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Ronald Lee Gilman, Senior Circuit Judge for the
United States Court of Appeals for the Sixth Circuit, sitting by designation.
      Mauricio Ortega-Cazares challenges the 40-month prison sentence imposed

following his guilty plea for being a removed alien found in the United States, in

violation of 8 U.S.C. § 1326. We affirm.

      This is Ortega-Cazares’s second appeal of his sentence. He was initially

sentenced to 40 months in prison and a two-year term of supervised release. That

sentence rested, in large part, on a 16-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) for Ortega-Cazares’s having previously been convicted of a

crime of violence—namely, a 2009 New York conviction for attempted second-

degree assault. While Ortega-Cazares’s appeal was still pending, this court granted

the parties’ joint motion to vacate his sentence due to the government’s failure to

provide the district court with any documentation specifying the statutory basis for

Ortega-Cazares’s New York conviction. Such proof is required to justify the

§ 2L1.2(b)(1)(A)(ii) enhancement.

      At resentencing, the government provided additional documentation in the

form of the transcript from Ortega-Cazares’s change-of-plea hearing in state court,

the New York indictment, and a certificate of disposition. The district court again

applied the crime-of-violence enhancement and imposed the same sentence as

before.




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       Ortega-Cazares contends that the documentation before the district court on

resentencing was still insufficient to prove that his prior conviction was for a crime

of violence. Although Ortega-Cazares acknowledges that he was convicted of

violating New York’s assault statute (Penal Law § 120.05), he claims that the

government failed to demonstrate that his conviction fell under Subsection (2) of

that law—which Ortega-Cazares concedes would constitute a crime of

violence—rather than Subsection (4), which would not trigger the enhancement

under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Ortega-Cazares contends that the district

could erred by failing to require the government to produce the judgment of

conviction or a transcript of Ortega-Cazares’s New York sentencing hearing. We

disagree.

       So long as the documents submitted to the district court reliably establish the

statute of conviction, this court has not required the submission of a particular type

of evidence. See United States v. Romero-Rendon, 220 F.3d 1159, 1161-62 (9th

Cir. 2000) (“The Sentencing Guidelines allow judges to rely at sentencing on ‘any

information . . . so long as it has sufficient indicia of reliability to support its

probable accuracy.’” (alteration in original) (quoting United States v. Marin-

Cuevas, 147 F.3d 889, 894-95 (9th Cir. 1998))). The documents in question here

provided sufficient proof that Ortega-Cazares was convicted under New York


                                             3
Penal Law § 120.05(2). The indictment accused Ortega-Cazares of a “violation of

Penal Law § 120.05 (2),” and the change-of-plea hearing similarly focused on the

charge of “attempted assault in the second degree . . .[,] a Class E Felony in

violation of Penal Law section 110 and 120.05(2).” Taken together, the documents

sufficiently prove that Ortega-Cazares pleaded guilty to a violation of New York

Penal Law § 120.05(2), a crime of violence for purposes of U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).

      To the extent that Ortega-Cazares contends that the 16-level enhancement

was improper because New York’s attempt statute—Penal Law § 110—is broader

than the federal definition of the same terms, he is mistaken. This court has

previously concluded that the New York attempt statute “is no broader than the

common law definition,” United States v. Rivera-Ramos, 578 F.3d 1111, 1115 (9th

Cir. 2009), and this panel may not overrule that precedent absent “clearly

irreconcilable . . . intervening higher authority,” Miller v. Gammie, 335 F.3d 889,

893 (9th Cir. 2003) (en banc). Despite Ortega-Cazares’s argument to the contrary,

no such intervening authority exists.

      AFFIRMED.




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