Opinion
No. 09-50054.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 4, 2010.
Christopher Alexander, Assistant U.S. Attorney, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Sara Marie Peloquin, Esquire, Assistant Federal Public Defender, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Janis L. Sammartino, District Judge, Presiding. D.C. No. 3:08-CR-00539-JLS.
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
José Agusto Perea-Ramos appeals from the 60-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Perez-Ramos contends that the district court erred when it applied a 16-level enhancement, pursuant to U.S.S.G. § 2L1.2, because his prior conviction for lewd or lascivious acts with a child under 14 years of age, in violation of Cal.Penal Code § 288(a), does not qualify as a crime of violence. He contends that Estrada-Espinoza v. Mukasey, .546 F.3d 1147 (9th Cir. 2008) (en banc), overruled United States v. Baron-Medim 187 F.3d 1144 (9th Cir. 1999), and United States v. Medina-Maella, 351 F.3d 944 (9th Cir. 2003). This contention is foreclosed by United States v. Medina-Villa, 567 F.3d 507, 511-16 (9th Cir. 2009).
Perez-Ramos also contends that Nijhawan v. Holder, ___U.S.___, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), effectively overruled Medina-Villa. This contention fails. See Nijhawav, 129 S.Ct. at 2300.
Finally, Perez-Ramos's contention that we must call for en banc review based on a conflict between Estrada-Espinoza and Medina-Villa is without merit. See Peluyo-Garcia v. Holder, 589 F.3d 1010, 1013-16 (9th Cir. 2009) (recognizing that Estrada-Espinoza and Medina-Villa set out "two different generic federal definitions of `sexual abuse of a minor'" and looking to both definitions to determine whether conviction under Cal.Penal Code § 261.5(d) qualifies as generic federal crime of "sexual abuse of a minor," under categorical approach).