NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                        AUG 13 2020
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 19-50246

                Plaintiff-Appellee,              D.C. No. 3:16-cr-00730-H-1

  v.
                                                 MEMORANDUM*
MARTEL VALENCIA-CORTEZ,

                Defendant-Appellant.

                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                             Submitted August 5, 2020**

Before:      SCHROEDER, HAWKINS, and LEE, Circuit Judges.

       Martel Valencia-Cortez appeals from the district court’s judgment and

challenges the 78-month sentence imposed upon remand following his jury-trial

conviction for assault on a federal officer, in violation of 18 U.S.C. § 111, and

bringing in aliens for financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii).



       *
             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).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Valencia-Cortez first contends that the district court erred in treating his

assault offense as a felony under U.S.S.G. § 2A2.2 because a rock is not a deadly

or dangerous weapon for purposes of 18 U.S.C. § 111(b). We disagree. Otherwise

“innocuous” objects can be deadly or dangerous if they are used in a manner that is

capable of causing death or serious injury. See United States v. Anchrum, 

, 801-02 (9th Cir. 2009). The evidence supports the jury’s determination that

the rock in this case was used in a manner that threatened serious injury to the

federal officer. Accordingly, the district court properly treated Valencia-Cortez’s

offense as a felonious assault under U.S.S.G. § 2A2.2. Contrary to Valencia-

Cortez’s argument, Bond v. United States, 

(2014), is not “clearly

irreconcilable” with our precedent interpreting § 111(b). See Miller v. Gammie,

, 900 (9th Cir. 2003) (en banc).

      Valencia-Cortez next contends that the district court erred by imposing an

official victim enhancement under U.S.S.G. § 3A1.2(b). The district court did not

abuse its discretion in imposing the enhancement because the record showed that

Valencia-Cortez’s assault against the federal agent was motivated by his desire to

evade arrest. See United States v. Gasca-Ruiz, 

, 1170 (9th Cir.

2017) (en banc) (stating standard of review); United States v. Rivera-Alonzo, 

, 836 (9th Cir. 2009) (official victim enhancement warranted where “a



                                          2                                     19-50246
defendant knows that the victim is a federal officer and then assaults the officer in

an attempt to get away or evade capture”).1 Valencia-Cortez’s argument that the

district court procedurally erred and violated Federal Rule of Criminal Procedure

32 by failing to provide a fuller explanation for the enhancement is unavailing.

The court’s reasons for the enhancement can be inferred from the presentence

report (“PSR”) and the record. See United States v. Carty, 

, 992 (9th

Cir. 2008) (en banc). Moreover, Valencia-Cortez did not object to any facts in the

PSR, including the facts asserted in support of the official victim enhancement.

See United States v. Carter, 

, 866 (9th Cir. 2000) (in the absence of

objections to factual statements made in the PSR, Rule 32 does not require specific

fact-finding in support of a sentencing enhancement).

      AFFIRMED.




1
  We do not decide whether Valencia-Cortez is correct that the 6-level
enhancement had to be supported by clear and convincing evidence because the
evidence here was sufficient to support the enhancement under a preponderance or
clear and convincing evidentiary standard.

                                          3                                    19-50246