
    UNITED STATES of America, Plaintiff-Appellee, v. David FRIAS-HERNANDEZ, Defendant-Appellant.
    No. 09-50404.
    United States Court of Appeals, Ninth Circuit.
    Submitted Sept. 13, 2010.
    
    Filed Sept. 21, 2010.
    W. Mark Conover, I, Esquire, Assistant U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
    Inge E. Brauer, San Diego, CA, for Defendant-Appellant.
    Before: SILVERMAN, CALLAHAN and N.R. SMITH, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

David Frias-Hernandez appeals the sentence imposed following his guilty plea to attempted entry after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Frias-Hernandez contends that the district court erred by determining that his prior conviction for assault with a deadly weapon, in violation of California Penal Code § 245(a)(1), constituted a crime of violence under U.S.S.G. § 2L1.2, because section 245(a)(1) does not contain the requisite use of force and is a general intent crime. These contentions are foreclosed. See United States v. Grajeda, 581 F.3d 1186, 1191-97 (9th Cir.2009).

Frias-Hernandez also contends that the district court erred by imposing a sentence in excess of the two-year statutory maximum for an 8 U.S.C. § 1326 violation. He argues that the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has been undermined and that 8 U.S.C. § 1326(b) is unconstitutional. These contentions are foreclosed. See United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir.2007) (en banc); see also United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     