UNITED STATES of America, Plaintiff-Appellee, v. Gerardo Rosales MARCIAL, Defendant-Appellant, 691 F. App'x 848

MEMORANDUM Gerardo Rosales Marcial appeals from the district court’s judgment and challenges the 48-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Marcial contends that the district court erred by applying a 16-level enhancement to his offense level under U.S.S.G. § 2L1.2(b)(l)(A)(ii) (2015) because his pri- or conviction for making a criminal threat, in violation of California Penal Code § 422, is not a “crime of violence.” As Marcial acknowledges, this argument is foreclosed. See United States v. Villavicencio-Burruel, 608 F.3d 556, 563 (9th Cir. 2010). We remain bound by Villavicencio-Burruel. See Miller v.

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (three-judge panel is bound by circuit precedent unless that precedent is “clearly irreconcilable” with intervening higher authority). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.