Opinion
No. 11-50236 D.C. No. 3:10-cr-01966-DMS
09-20-2012
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GONZALO ANAYA-SANTIAGO, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Gonzalo Anaya-Santiago appeals from the 63-month sentence imposed following his bench-trial conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Anaya-Santiago contends that the district court erred by imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because his conviction under Indiana Code § 35-42-4-3(b) does not qualify as sexual abuse of a minor under Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). The district court correctly determined that the Indiana conviction constituted sexual abuse of a minor warranting the 16-level enhancement. See United States v. Medina-Villa, 567 F.3d 507, 513-16 (9th Cir. 2009). We reject Anaya-Santiago's argument that Medina-Villa is no longer good law.
Anaya-Santiago also contends that he was subject to the 2-year statutory maximum of 8 U.S.C. § 1326(a), rather than the 20-year maximum of section 1326(b)(2), because the Supreme Court implicitly overruled Almendarez-Torres v. United States, 523 U.S. 224 (1998), in Nijhawan v. Holder, 557 U.S. 29 (2009), and United States v. O'Brien, 130 S. Ct. 2169 (2010). We have previously considered and rejected this argument. See United States v. Ruiz-Apolonio, 657 F.3d 907, 920-21 & n.11 (9th Cir. 2011).
AFFIRMED.