United States v. Rafael Molina-Martinez

FILED
NOT FOR PUBLICATION FEB 22 2012

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. 11-10092

Plaintiff - Appellee, D.C. No. 4:10-cr-01809-FRZ

v.
MEMORANDUM *
RAFAEL MOLINA-MARTINEZ,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding

Submitted February 21, 2012 **

Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

Rafael Molina-Martinez appeals from the 57-month sentence imposed

following his jury-trial conviction for reentry after deportation, in violation of 8

U.S.C. § 1326(a). 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. Appellant. P. 34(a)(2).
 Molina-Martinez contends that the district court erred when it applied a 16-

level enhancement, under 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 United

States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999), holding that a

violation of Cal. Penal Code § 288(a) is categorically a crime of violence, is

inconsistent with Johnson v. United States, 130 S. Ct. 1265 (2010). This

contention lacks merit. See United States v. Orozco-Acosta, 607 F.3d 1156, 1166

(9th Cir. 2010) (citing United States v. Medina-Villa, 567 F.3d 507 (9th Cir.

2009)). Accordingly, we decline Molina-Martinez’s invitation that we seek en

banc review of this issue.

AFFIRMED.

2 11-10092