USA v. Jesus Herrera-Torre, No. 09-50458 (9th Cir. 2010)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT OCT 04 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-50458 D.C. No. 3:08-cr-01094-JM v. MEMORANDUM * JESUS HERRERA-TORRES, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. Jesus Herrera-Torres appeals from the 48-month sentence imposed following his guilty-plea conviction for illegal reentry, 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). Herrera-Torres contends that his sentence is substantively unreasonable under United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), in light of his mitigating personal circumstances and the age of the prior conviction that was the basis for a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The record reflects that the 48-month sentence is substantively reasonable in light of the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-52 (2007); cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir. 2009). Herrera-Torres also contends that United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2008), that held that a conviction under California Penal Code section 288(a) constitutes sexual abuse of a minor and qualifies for the crime of violence sentence enhancement, should be overruled because it conflicts with Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). This contention is foreclosed. See Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013-14 (9th Cir. 2009); see also Robbins v. Carey, 481 F.3d 1143, 1149 n.3 (9th Cir. 2007) (In the absence of intervening authority, a three-judge panel is without authority to overrule Circuit precedent.). 2 09-50458 Last, as Herrera-Torres concedes, his contention that Almendarez-Torres v. United States, 523 U.S. 224 (1998), should be overruled is foreclosed. See United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc). AFFIRMED. 3 09-50458

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