                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           FEB 11 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10570

              Plaintiff - Appellee,              D.C. No. 4:14-cr-01235-RCC-
                                                 BPV-1
 v.

EDUARDO GONZALEZ-DURAN,                          MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Raner C. Collins, Chief District Judge, Presiding

                           Submitted February 9, 2016**
                             San Francisco, California

Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.

      Eduardo Gonzalez-Duran appeals the District Court of Arizona’s 12-level

enhancement to his sentence based on a conviction under California Penal Code §

288(a). We have jurisdiction pursuant to 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).
      We have previously held that a conviction under § 288(a) constitutes “sexual

abuse of a minor,” qualifying it as a “crime of violence” that warrants a twelve-

level or sixteen-level enhancement under U.S.S.G. § 2L1.2. United States v.

Medina-Maella, 351 F.3d 944, 947 (9th Cir. 2003); United States v. Baron-

Medina, 187 F.3d 1144, 1147 (9th Cir. 1999). We cannot disregard that precedent

unless it is “clearly irreconcilable with the reasoning or theory of intervening

higher authority.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

      Gonzalez-Duran and Amici argue those previous decisions are clearly

irreconcilable with Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008)

(en banc), overruled on other grounds by United States v. Aguila-Montes de Oca,

655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam), and abrogated by Descamps

v. United States, 133 S. Ct. 2276 (2013). That contention is foreclosed by binding

precedent holding that “Medina-Maella’s and Baron-Medina’s holdings . . . remain

valid law subsequent to Estrada-Espinoza.” United States v. Medina-Villa, 567

F.3d 507, 516 (9th Cir. 2009). In any case, although Estrada-Espinoza did survey

statutory rape laws, it did not require all subsequent courts to survey modern

criminal statutes in defining a generic federal crime. See 546 F.3d at 1152-53.

      Nor is our precedent clearly irreconcilable with Taylor v. United States, 495

U.S. 575 (1990), and Nijhawan v. Holder, 557 U.S. 29 (2009). Taylor concluded


                                           2
that Congress intended the statutory word “burglary” to be defined in the generic

sense used in the criminal code of most states, but did not mandate that courts

survey state statutes to define every generic federal crime. See 495 U.S. at 590,

598-99. Nijhawan noted that “sexual abuse of a minor” is a generic offense, but

did not prescribe how a court should ascertain the definition of that or any other

generic offense. See 557 U.S. at 37. Since both decisions, we have reaffirmed that

the generic definition of “sexual abuse of a minor” established in Baron-Medina

and upheld in Medina-Villa is still good law. See United States v. Martinez, 786

F.3d 1227, 1231 (9th Cir. 2015); United States v. Gomez, 757 F.3d 885, 904 (9th

Cir. 2014). We decline the invitation to change course.

      The parties dispute the standard of review to be applied to this case.

Compare United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir.

2009) (applying a de novo standard of review to a sentencing enhancement

challenge raised for the first time on appeal because it was purely an issue of law

and would not prejudice the other party), with United States v. Pimentel-Flores,

339 F.3d 959, 967 (9th Cir. 2003) (applying a plain error standard to a sentencing

enhancement challenge raised for the first time on appeal). However, because we

are bound under either standard by our existing precedent, we need not resolve that

issue here.


                                          3
      The definition of “sexual abuse of a minor” set forth in our earlier decisions

remains binding precedent that we lack authority to overturn. Therefore, the

district court did not err in adding a 12-level enhancement to Gonzalez-Duran’s

sentence.

      AFFIRMED.




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