United States v. Jose Nieto-Resendiz

357 F. App'x 962

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2009
• Docket: 08-50580
• Status: Unpublished

Opinion

MEMORANDUM **

Jose Ruben Nieto-Resendiz appeals from the 45-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. We affirm, but remand to correct the judgment.

Nieto-Resendiz 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 EstradaEspinoza 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).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b). See United States v. Herrera-Bianco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)).

AFFIRMED; REMANDED to correct the judgment.

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