                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 17 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50087

                Plaintiff-Appellee,             D.C. No. 3:15-cr-02810-WQH

 v.
                                                MEMORANDUM*
ASCENCION HERNANDEZ-JIMENEZ,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                   William Q. Hayes, District Judge, Presiding

                          Submitted November 15, 2017**

Before:      CANBY, TROTT, and GRABER, Circuit Judges.

      Ascension Hernandez-Jimenez challenges the 30-month sentence imposed

following his guilty-plea conviction for attempted reentry of a removed alien, 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 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).
      Hernandez-Jimenez contends that the district court erred by relying on his

prior conviction under California Penal Code § 288(a) to impose a 16-level

enhancement to his base offense level. We have previously held that a conviction

under § 288(a) constitutes “sexual abuse of a minor,” which is a “crime of

violence” that warrants a 16-level enhancement under U.S.S.G. § 2L1.2. See

United States v. Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009). 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, 892-93

(9th Cir. 2003) (en banc).

      Hernandez-Jimenez contends that recent California case law reflects that

§ 288(a) is broader than the federal definition because a defendant can be found

guilty under § 288(a) even if the victim suffered no harm. Even if the California

cases cited by Hernandez-Jimenez are “higher authority,” they are not inconsistent

with federal law, which holds that, regardless of harm, “sexual conduct involving

[children younger than fourteen years old] is per se abusive.” United States v.

Farmer, 627 F.3d 416, 419 (9th Cir. 2010).

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

135 S. Ct. 2551 (2015) or Moncrieffe v. Holder, 569 U.S. 184 (2013). Since both

decisions, we have recognized the continuing force of Medina-Villa. See United

States v. Rocha-Alvarado, 843 F.3d 802, 808 (9th Cir. 2016), cert. denied, 137 S.


                                          2                                    16-50087
Ct. 2214 (2017).

      AFFIRMED.




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