FILED
NOT FOR PUBLICATION
FEB 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10570
Plaintiff - Appellee, D.C. No. 4:14-cr-01235-RCC-
BPV-1
v.
EDUARDO GONZALEZ-DURAN, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Submitted February 9, 2016**
San Francisco, California
Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.
Eduardo Gonzalez-Duran appeals the District Court of Arizona’s 12-level
enhancement to his sentence based on a conviction under California Penal Code §
288(a). We have jurisdiction pursuant to 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).
We have previously held that a conviction under § 288(a) constitutes “sexual
abuse of a minor,” qualifying it as a “crime of violence” that warrants a twelve-
level or sixteen-level enhancement under U.S.S.G. § 2L1.2. United States v.
Medina-Maella, 351 F.3d 944, 947 (9th Cir. 2003); United States v. Baron-
Medina, 187 F.3d 1144, 1147 (9th Cir. 1999). We cannot disregard that precedent
unless it is “clearly irreconcilable with the reasoning or theory of intervening
higher authority.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).
Gonzalez-Duran and Amici argue those previous decisions are clearly
irreconcilable with Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008)
(en banc), overruled on other grounds by United States v. Aguila-Montes de Oca,
655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam), and abrogated by Descamps
v. United States, 133 S. Ct. 2276 (2013). That contention is foreclosed by binding
precedent holding that “Medina-Maella’s and Baron-Medina’s holdings . . . remain
valid law subsequent to Estrada-Espinoza.” United States v. Medina-Villa, 567
F.3d 507, 516 (9th Cir. 2009). In any case, although Estrada-Espinoza did survey
statutory rape laws, it did not require all subsequent courts to survey modern
criminal statutes in defining a generic federal crime. See 546 F.3d at 1152-53.
Nor is our precedent clearly irreconcilable with Taylor v. United States, 495
U.S. 575 (1990), and Nijhawan v. Holder, 557 U.S. 29 (2009). Taylor concluded
2
that Congress intended the statutory word “burglary” to be defined in the generic
sense used in the criminal code of most states, but did not mandate that courts
survey state statutes to define every generic federal crime. See 495 U.S. at 590,
598-99. Nijhawan noted that “sexual abuse of a minor” is a generic offense, but
did not prescribe how a court should ascertain the definition of that or any other
generic offense. See 557 U.S. at 37. Since both decisions, we have reaffirmed that
the generic definition of “sexual abuse of a minor” established in Baron-Medina
and upheld in Medina-Villa is still good law. See United States v. Martinez, 786
F.3d 1227, 1231 (9th Cir. 2015); United States v. Gomez, 757 F.3d 885, 904 (9th
Cir. 2014). We decline the invitation to change course.
The parties dispute the standard of review to be applied to this case.
Compare United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir.
2009) (applying a de novo standard of review to a sentencing enhancement
challenge raised for the first time on appeal because it was purely an issue of law
and would not prejudice the other party), with United States v. Pimentel-Flores,
339 F.3d 959, 967 (9th Cir. 2003) (applying a plain error standard to a sentencing
enhancement challenge raised for the first time on appeal). However, because we
are bound under either standard by our existing precedent, we need not resolve that
issue here.
3
The definition of “sexual abuse of a minor” set forth in our earlier decisions
remains binding precedent that we lack authority to overturn. Therefore, the
district court did not err in adding a 12-level enhancement to Gonzalez-Duran’s
sentence.
AFFIRMED.
4