USA V. ANTONIO HERNANDEZ-LINCONA, No. 19-10410 (9th Cir. 2021)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 19-10410 D.C. No. 3:18-cr-00268-WHO-1 v. ANTONIO HERNANDEZ-LINCONA, AKA Antonio Hernandez, AKA Antonio Hernandez-Licona, AKA Antonio LiconaHernandez, AKA Antonio LinconaHernandez, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding Argued and Submitted March 10, 2021 San Francisco, California Before: GOULD and FRIEDLAND, Circuit Judges, and ERICKSEN,** District Judge. Antonio Hernandez-Lincona (“Hernandez-Lincona”) appeals the district * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota, sitting by designation. court’s denial of his motion to dismiss an indictment charging him under 8 U.S.C. § 1326 with illegal re-entry after deportation. Because the parties are familiar with the facts and procedural history of the case, we recite only those facts necessary to decide this appeal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We review a district court’s denial of a motion to dismiss an indictment de novo. United States v. Ziskin, 360 F.3d 934, 942 (9th Cir. 2003). “We review de novo whether a statute is void for vagueness.” United States v. Hungerford, 465 F.3d 1113, 1116 (9th Cir. 2006). Hernandez-Lincona asserts that our definition of “sexual abuse of a minor” under 8 U.S.C. §1101(a)(43)(A) is “clearly irreconcilable,” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), with the Supreme Court’s decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017). Yet in the years since Esquivel-Quintana was decided, we have at least twice reaffirmed our definition of “sexual abuse of a minor” in published decisions. See Quintero-Cisneros v. Sessions, 891 F.3d 1197, 1200 (9th Cir. 2018); Mero v. Barr, 957 F.3d 1021, 1023 (9th Cir. 2020). Because we are bound by our decisions in Quintero-Cisneros and Mero in the absence of an even more recent Supreme Court or en banc decision to the contrary, we reject Hernandez-Lincona’s challenge. Next, Hernandez-Lincona contends that our previous decisions concluding that California Penal Code § 288(a) is categorically “sexual abuse of a minor” are 2 clearly irreconcilable with the Supreme Court’s categorical approach jurisprudence, as set forth in cases such as Moncrieffe v. Holder, 569 U.S. 184 (2013), and Descamps v. United States, 570 U.S. 254 (2013). Again, his argument is foreclosed by our precedent. In Flores v. Barr, 930 F.3d 1082 (9th Cir. 2019), we reaffirmed that, under the categorical approach set forth in Supreme Court decisions, “California Penal Code § 288(a) categorically involves ‘sexual abuse of a minor’ under 8 U.S.C. § 1101(a)(43)(A).” Id. at 1087 (quoting United States v. Farmer, 627 F.3d 416, 420 (9th Cir. 2010)).1 Finally, Hernandez-Lincona asserts that our definition of “sexual abuse of a minor” is unconstitutionally vague. We disagree, having recently rejected a similar challenge to an even broader phrase in United States v. Hudson, 986 F.3d 1206, 1216 (9th Cir. 2021). Hudson involved a conviction under a federal statute that imposes additional penalties on defendants who have previously been convicted of offenses “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Id. at 1211 (quoting 18 U.S.C. § 2252(b)(2)). 1 Hernandez-Lincona’s reliance on Shular v. United States, 140 S. Ct. 779 (2020)—a case decided after Flores—fares no better. Shular did not modify or displace the “generic” categorical approach as described in Taylor v. United States, 495 U.S. 575 (1990), which Hernandez-Lincona acknowledges is the correct approach here. See Shular, 140 S. Ct. at 783 (describing the “generic” categorical approach, which requires courts to “define the offense so that [they] can compare elements, not labels”). So even after Shular, Flores continues to bind us on the issue of irreconcilability. 3 The definition Hernandez-Lincona challenges here is more precise: it lacks the phrase “relating to,” which had a “broadening effect” on the statute in Hudson. Id. at 1213. We are bound by Hudson, and likewise conclude that our definition of “sexual abuse of a minor” as the term is used in § 1101(a)(43)(A) is not void for vagueness. AFFIRMED. 4

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