FILED
NOT FOR PUBLICATION SEP 20 2012
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50236
Plaintiff - Appellee, D.C. No. 3:10-cr-01966-DMS
v.
MEMORANDUM *
GONZALO ANAYA-SANTIAGO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Gonzalo Anaya-Santiago appeals from the 63-month sentence imposed
following his bench-trial conviction for being a deported alien found in the United
States, 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).
Anaya-Santiago contends that the district court erred by imposing a 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because his conviction under
Indiana Code § 35-42-4-3(b) does not qualify as sexual abuse of a minor under
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). The
district court correctly determined that the Indiana conviction constituted sexual
abuse of a minor warranting the 16-level enhancement. See United States v.
Medina-Villa, 567 F.3d 507, 513-16 (9th Cir. 2009). We reject Anaya-Santiago’s
argument that Medina-Villa is no longer good law.
Anaya-Santiago also contends that he was subject to the 2-year statutory
maximum of 8 U.S.C. § 1326(a), rather than the 20-year maximum of section
1326(b)(2), because the Supreme Court implicitly overruled Almendarez-Torres v.
United States, 523 U.S. 224 (1998), in Nijhawan v. Holder, 557 U.S. 29 (2009),
and United States v. O'Brien, 130 S. Ct. 2169 (2010). We have previously
considered and rejected this argument. See United States v. Ruiz-Apolonio, 657
F.3d 907, 920-21 & n.11 (9th Cir. 2011).
AFFIRMED.
2 11-50236