USA v. Jose Perez-Ramo, No. 09-50054 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 04 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-50054 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

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