United States v. Jesus Herrera-Torres
UNITED STATES of America, Plaintiff-Appellee, v. Jesus HERRERA-TORRES, Defendant-Appellant
- Proceeding
- appeal
- Trial court
- United States District Court for the Southern District of California
- Trial judge
- Jeffrey T. Miller (district judge)
- Outcome
- affirmed — AFFIRMED.
- Area
- criminal
- Panel
- Barry G. Silverman (author), Smith, Consuelo M. Callahan
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT OCT 04 2010
MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS UNITED STATES OF AMERICA, No. 09-50458 Plaintiff - Appellee, D.C. No. 3:08-cr-01094-JM v. MEMORANDUM * JESUS HERRERA-TORRES, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Jesus Herrera-Torres appeals from the 48-month sentence imposed following his guilty-plea conviction for illegal reentry, 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 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). Herrera-Torres contends that his sentence is substantively unreasonable under United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), in light of his mitigating personal circumstances and the age of the prior conviction that was the basis for a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The record reflects that the 48-month sentence is substantively reasonable in light of the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-52 (2007); cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir.
2009).
Herrera-Torres also contends that United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2008), that held that a conviction under California Penal Code section 288(a) constitutes “sexual abuse of a minor” and qualifies for the crime of violence sentence enhancement, should be overruled because it conflicts with Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). This contention is foreclosed. See Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013-14 (9th Cir. 2009); see also Robbins v. Carey, 481 F.3d 1143, 1149 n.3 (9th Cir. 2007)
(In the absence of intervening authority, a three-judge panel is without authority to overrule Circuit precedent.).
2 09-50458 Last, as Herrera-Torres concedes, his contention that Almendarez-Torres v. United States, 523 U.S. 224 (1998), should be overruled is foreclosed. See United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc).
AFFIRMED.
3 09-50458