                            NOT FOR PUBLICATION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,                         No. 09-50458

               Plaintiff - Appellee,              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
