NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JOSE GARCIA-GALIANA, 

Defendant-Appellant.

No. 16-10120 

D.C. No. 5:15-cr-00110-LHK-1 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges. 

 

Jose Garcia-Galiana appeals from the district court’s judgment and 

challenges the 51-month sentence imposed following his guilty-plea conviction for 

illegal reentry following deportation, in violation of 8 U.S.C. § 1326. We have 

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

 

* 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).

FILED

MAY 29 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-10120 

Garcia-Galiana contends that the district court erred in applying a 16-level 

crime-of-violence sentencing enhancement because his prior conviction for assault 

with a deadly weapon in violation of California Penal Code § 245(a)(1) is not a 

categorical crime of violence under U.S.S.G. § 2L1.2(b)(1)(A) (2015). GarciaGaliana’s argument is foreclosed by United States v. Vasquez-Gonzalez, 901 F.3d 

1060, 1065-68 (9th Cir. 2018), which was decided after the briefing in this case 

was complete. In Vasquez-Gonzalez, this court held that section 245(a)(1) is a 

categorical crime of violence under 18 U.S.C. § 16(a). See id. at 1068. Because 

the language of section 16(a) is identical in relevant part to the definition contained 

in section 2L1.2(b)(1)(A)(ii) cmt. n.1(B)(iii), the district court properly imposed 

the enhancement.

Garcia-Galiana also contends that the district court procedurally erred by 

failing to acknowledge its authority to disagree with the Guidelines on policy 

grounds, relying on improper considerations, and failing to address his sentencing 

arguments. The court did not plainly err. See United States v. Valencia-Barragan, 

608 F.3d 1103, 1108 & n.3 (9th Cir. 2010). The record shows that the court

listened to Garcia-Galiana’s policy-based arguments and agreed that the Guidelines 

range was too high as applied to him. Moreover, the court considered and 

discussed Garcia-Galiana’s mitigating arguments, including his young age at the 

time he sustained the assault conviction, in imposing a 26-month downward 
3 16-10120 

variance. Finally, the court adequately explained the sentence by reference only to 

proper sentencing considerations under 18 U.S.C. § 3553(a). The court satisfied its 

procedural obligations. See United States v. Ayala-Nicanor, 659 F.3d 744, 752-53

(9th Cir. 2011). 

Garcia-Galiana lastly contends that the sentence is substantively 

unreasonable in light of his mitigating circumstances and his cultural assimiliation 

in the United States.1 The district court did not abuse its discretion. See Gall v. 

United States, 552 U.S. 38, 51 (2007). The below-Guidelines sentence is 

substantively reasonable in light of the section 3553(a) sentencing factors and the 

totality of the circumstances. See Gall, 552 U.S. at 51. 

AFFIRMED.

 

1

Insofar as Garcia-Galiana challenges the district court’s denial of his request for a 

downward departure based on cultural assimilation, we review that claim only as 

part of our review of the overall reasonableness of the sentence. See United States 

v. Vasquez-Cruz, 692 F.3d 1001, 1008 (9th Cir. 2012).