United States v. Jose Jimenez-Lopez ( 2010 )

FILED
NOT FOR PUBLICATION MAR 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50156
Plaintiff - Appellee, D.C. No. 3:07-CR-03345-BEN
v.
MEMORANDUM *
JOSE RAUL JIMENEZ-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
EG/Research
§ 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 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-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, 129 S. Ct. 2294 (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-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 a conviction under Cal. Penal Code § 261.5(d)
qualifies as the generic federal crime of “sexual abuse of a minor,” under the
EG/Research 2 09-50156
categorical approach).
AFFIRMED.
EG/Research 3 09-50156