FILED
NOT FOR PUBLICATION OCT 04 2010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. 09-50054
Plaintiff - Appellee, D.C. No. 3:08-CR-00539-JLS
v.
MEMORANDUM *
JOSE PEREZ-RAMOS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Jose Agusto Perez-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.
*
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).
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-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).
Perez-Ramos also 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, 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 Pelayo-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).
AFFIRMED.
2 09-50054