                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 27 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-50496

              Plaintiff - Appellee,              D.C. No. 3:08-cr-01452-WQH-1

  v.
                                                 MEMORANDUM *
RICARDO RIOS-PEREZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                      Argued and Submitted October 8, 2009
                              Pasadena, California

Before: W. FLETCHER and CLIFTON, Circuit Judges, and SINGLETON, Senior
District Judge.**

       Ricardo Rios-Perez appeals the 57-month sentence he received for attempted

reentry after deportation in violation of 8 U.S.C. § 1326, challenging both the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
categorization of his California attempted murder conviction as one for a crime of

violence and the constitutionality of his sentence. We affirm.

      We have rejected each of Rios-Perez’s arguments that the offense of

attempted murder under California law is not a crime of violence under the

categorical approach of Taylor v. United States, 495 U.S. 575 (1990). First, the

“slight act” that California requires is equivalent to the “substantial step” in the

generic version of attempt. See United States v. Saavedra-Velazquez, 578 F.3d

1103, 1110 (9th Cir. 2009). Second, whether there are affirmative defenses is

irrelevant to our analysis under the categorical approach. See United States v.

Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010) (“The availability of an

affirmative defense is not relevant to the categorical analysis.”).

      We have also rejected Rios-Perez’s remaining arguments: that Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998), has been overruled or

abrogated; and that 8 U.S.C. § 1326(b) is unconstitutional. See, e.g., United States

v. Gomez-Mendez, 486 F.3d 599, 606 (9th Cir. 2007).

      AFFIRMED.




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