United States v. Jose Perez-Ramos

                                                                            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                            NOT FOR PUBLICATION                              OCT 04 2010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.


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