United States v. Jose Nieto-Resendiz

Court of Appeals for the Ninth Circuit · 08-50580 · 2009-12-17 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Jose Ruben NIETO-RESENDIZ, Defendant-Appellant

Area: other
Panel: Arthur L. Alarcon (author), Atsushi W. Tashima, Stephen S. Trott

Analysis

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Opinion

FILED NOT FOR PUBLICATION DEC 17 2009

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. 08-50580 Plaintiff - Appellee, D.C. No. 3:07-cr-03347-JTM v. MEMORANDUM * JOSE RUBEN NIETO-RESENDIZ, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding Submitted November 17, 2009 ** Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

Jose Ruben Nieto-Resendiz appeals from the 45-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

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

§ 1291. We affirm, but remand to correct the judgment.

Nieto-Resendiz 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).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)).

AFFIRMED; REMANDED to correct the judgment.

SZ/Research 2 08-50580