                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 05 2010

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 09-50156

               Plaintiff - Appellee,             D.C. No. 3:07-CR-03345-BEN

   v.
                                                 MEMORANDUM *
 JOSE RAUL JIMENEZ-LOPEZ,

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Southern District of California
                      Roger T. Benitez, District Judge, Presiding

                            Submitted February 16, 2010 **

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

        Jose Raul Jimenez-Lopez appeals from the 52-month sentence imposed

following his guilty-plea conviction for being a deported alien found in the United

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

          *
             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
§ 1291, and we affirm.

       Jimenez-Lopez contends that the district court erred when it applied a 16-

level enhancement, pursuant to U.S.S.G. § 2L1.2, because his 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 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).

       Jimenez-Lopez contends that Nijhawan v. Holder, 129 S. Ct. 2294 (2009),

effectively overruled Medina-Villa. This contention fails. See Nijhawan, 129 S.

Ct. at 2300.

       Finally, Jimenez-Lopez’s contention that we must call for en banc review

based on a conflict between Estrada-Espinoza and Medina-Villa is without merit.

See Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013-1016 (9th Cir. 2009)

(recognizing that Estrada-Espinoza and Medina-Villa set out “two different

generic federal definitions of ‘sexual abuse of a minor’” and looking to both

definitions to determine whether a conviction under Cal. Penal Code § 261.5(d)

qualifies as the generic federal crime of “sexual abuse of a minor,” under the


EG/Research                               2                                      09-50156
categorical approach).

       AFFIRMED.




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