                                                                           FILED
                           NOT FOR PUBLICATION                             SEP 23 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10589

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00802-WHO-1

  v.
                                                 MEMORANDUM*
ARGIMIRO SOLANO, AKA Manuel
DeJesus Cortez, AKA Romero Perez,
AKA Argiro Pozos Solano, AKA Arlimiro
Poso Solano, AKA Romero Solano,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    William H. Orrick, District Judge, Presiding

                    Argued and Submitted September 11, 2014
                            San Francisco, California

Before: BEA, IKUTA, and HURWITZ, Circuit Judges.

       Defendant Argimiro Solano appeals his conviction for illegal reentry after

deportation in violation of 8 U.S.C. § 1326. On appeal, he challenges the district




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court’s denial of his motion to dismiss his indictment. We have jurisdiction under

28 U.S.C. § 1291.

      We have previously held that unlawful sexual penetration under section

289(a)(1) of the California Penal Code is a crime of violence for purposes of 18

U.S.C. § 16(b) because it “is precisely the type of felony that by its nature” raises

“a substantial risk that physical force will be used during the course of the crime.”

United States v. Sandoval-Orellana, 714 F.3d 1174, 1179 (9th Cir. 2013) (internal

quotation marks omitted). Because section 289(a)(1) is identical in material

respects to section 261(a)(2), that conclusion applies here as well, and we hold that

Solano’s prior rape conviction under section 261(a)(2) of the California Penal

Code constitutes a “crime of violence” as defined by § 16(b).

      Because the crime of rape under section 261(a)(2) is a crime of violence for

purposes of § 16(b), it meets the definition of “aggravated felony” under 8 U.S.C.

§ 1101(a)(43). Accordingly, Solano’s collateral challenge to his 1998 removal

fails, and the district court did not err in denying Solano’s motion to dismiss his

indictment.1

      AFFIRMED.

      1
       Because we decide on this ground, we need not consider whether
section 261(a)(2) also meets the definition of aggravated felony because it falls
within the generic definition of rape.

                                           2
