NOT FOR PUBLICATION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, CLER K U.S. COURT OF APPEAL S2 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. § 2 L 1.2 ( b)(1)(A) (2015)

. Garcia

Galiana ’s argument is foreclosed by United States v. Vasquez

- Gonz alez , 901 F.3d 1060, 1065

- 68 (9th Cir. 2018), which was decided after the briefing in this case was complete. In Vasquez

- Gonzalez , t his 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

- Ga liana also contends that the district court proc edurally erred by failing to acknowledge its authority to disagree with the Guideline s 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

- Ba rragan , 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 Garci a - Galiana’s mitigating arguments , including his young age at the time he sustained the assault conviction , in imposing a 26

- month downward3 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 reques t 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. S ee United States v. Vasquez

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