                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                           MAR 05 2010

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

 UNITED STATES OF AMERICA,                       No. 09-50254

               Plaintiff - Appellee,             D.C. No. 3:08-CR-03610-DMS

   v.
                                                 MEMORANDUM *
 MIGUEL ANGEL FONSECA,

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Southern District of California
                      Dana M. Sabraw, District Judge, Presiding

                            Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Miguel Angel Fonseca appeals from the 36-month sentence imposed

following his guilty-plea conviction for attempted entry after deportation, in

violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291,

          *
             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).

EG/Research
and we affirm.

       Fonseca contends that the district court procedurally erred by failing to

address several of his sentencing arguments and that the sentence was

substantively unreasonable because it failed adequately to reflect the

considerations at 18 U.S.C. § 3553(a). Our review of the record indicates that the

judge’s explanation of the sentence was procedurally adequate under the

circumstances. See Rita v. United States, 551 U.S. 338, 359 (2007); United States

v. Carty, 520 F.3d 984, 995 (9th Cir. 2008) (en banc). Considering the totality of

the circumstances, the 36-month sentence—five months below the advisory

guidelines range—was substantively reasonable. Id. at 993.

       Fonseca also contends that application of the 16-level enhancement under

U.S.S.G. § 2L1.2 resulted in improper double-counting of the fact of his prior

conviction, because the prior conviction was also considered in calculating his

criminal history category. This argument is foreclosed by United States v. Garcia-

Cardenas, 555 F.3d 1049 (9th Cir. 2009) (per curiam).

       Finally, Fonseca contends that the district court erred in applying the 16-

level enhancement under U.S.S.G. § 2L1.2 because Fonseca’s 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


EG/Research                                2                                       09-50254
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). Fonseca’s

related contention that Nijhawan v. Holder, 129 S. Ct. 2294 (2009), effectively

overruled Medina-Villa also fails. See Nijhawan, 129 S. Ct. at 2300.

       AFFIRMED.




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