United States v. Jose Jimenez-Lopez

369 F. App'x 857

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 5, 2010
• Docket: 09-50156
• Status: Unpublished

Opinion

MEMORANDUM **

Jose Raul Jimenez-Lopez appeals from the 52-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Jimenez-Lopez 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 CaLPenal 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-Medina, 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).

Jimenez-Lopez 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 Nijhawan, 129 S.Ct. at 2300.

Finally, Jimenez-Lopez’s contention that we must call for en banc review based on a conflict between Estrada-Espinoza and Medina-Villa is without merit. See Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013-1016 (9th Cir.2009) (recognizing that Estrada-E spinoza and Medina-Villa set out “two different generic federal definitions of ‘sexual abuse of a minor’ ” and looking to both definitions to determine whether a conviction under CaLPenal Code § 261.5(d) qualifies as the generic federal crime of “sexual abuse of a minor,” under the categorical approach).

AFFIRMED.

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