United States v. Ascencion Hernandez-Jimenez

Court of Appeals for the Ninth Circuit · 16-50087 · 2017-11-17 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Ascencion HERNANDEZ-JIMENEZ, Defendant-Appellant

Area: other
Panel: William C. Canby, Jr. (author), Susan Graber, Stephen S. Trott

Analysis

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Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 17 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 16-50087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.

3 16-50087