                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 15 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-10213

              Plaintiff - Appellee,              D.C. No. 4:09-CR-00001-JMR-
                                                 BPV-1
  v.

ROBERTO MARTINEZ-NIETO,                          MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                     John M. Roll, District Judge, Presiding

                             Submitted June 11, 2012**
                              San Francisco, California

Before: HUG, RAWLINSON, and IKUTA, Circuit Judges.

       Roberto Martinez-Nieto appeals his conviction and 46-month sentence for

illegal reentry in violation of 8 U.S.C. § 1326(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 Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Although the magistrate judge did not fully comply with Rule 11 of the

Federal Rules of Criminal Procedure, this does not constitute plain error because

Martinez fails to show a reasonable probability that, but for the errors, he would

not have entered his guilty plea. See United States v. Dominguez Benitez, 542 U.S.

74, 83 (2004).

      The district court did not err by applying a sixteen-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(A)(ii) for Martinez’s prior conviction of forcible lewd acts

upon a child under 14 years old in violation of California Penal Code § 288(b).

Because a violation of California Penal Code § 288(a) categorically constitutes

“sexual abuse of a minor” and is a “crime of violence” under the Sentencing

Guidelines, United States v. Medina-Villa, 567 F.3d 507, 516 (9th Cir. 2009), and

because California Penal Code § 288(a) “is a lesser or necessarily included offense

of [§ 288(b)],” see People v. Ward, 233 Cal. Rptr. 477, 485 (Ct. App. 1986),

Martinez’s conviction under § 288(b), like convictions under § 288(a),

categorically constitutes a “crime of violence” for sentencing enhancement

purposes.

      Martinez’s argument that the district court erred when it denied Martinez’s

request for a downward departure fails because, reviewing only for reasonableness,

see United States v. Mohamed, 459 F.3d 979, 986–87 (9th Cir. 2006), the record


                                          2
reflects that Martinez’s mid-Guidelines sentence was reasonable in light of the

totality of the circumstances and the sentencing factors set forth in 18 U.S.C.

§ 3553(a). See Gall v. United States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




                                          3
