UNITED STATES v. HEREDIA SILVA (2018)

United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Francisco HEREDIA-SILVA, Defendant-Appellant.

No. 17-50209

Decided: August 21, 2018

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

Helen H. Hong, Assistant U.S. Attorney, Ajay Krishnamurthy, Steven Lee, Esquire, Special Assistant U.S. Attorney, Office of the US Attorney, San Diego, CA, for Plaintiff-Appellee David James Zugman, Attorney, Burcham & Zugman, San Diego, CA, for Defendant-Appellant

MEMORANDUM **

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 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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