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United States v. Gonzalo Anaya-Santiago

Court of Appeals for the Ninth Circuit · 11-50236 · 2012-09-20 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Gonzalo ANAYA-SANTIAGO, Defendant-Appellant

Area
other
Panel
Kim M. Wardlaw (author), Smith, Richard R. Clifton

Analysis

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Opinion

FILED NOT FOR PUBLICATION SEP 20 2012

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-50236 Plaintiff - Appellee, D.C. No. 3:10-cr-01966-DMS v. MEMORANDUM * GONZALO ANAYA-SANTIAGO, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted September 10, 2012 ** Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

Gonzalo Anaya-Santiago appeals from the 63-month sentence imposed following his bench-trial conviction for being a deported alien found in the United States, 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). Anaya-Santiago contends that the district court erred by imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because his conviction under Indiana Code § 35-42-4-3(b) does not qualify as sexual abuse of a minor under Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). The district court correctly determined that the Indiana conviction constituted sexual abuse of a minor warranting the 16-level enhancement. See United States v. Medina-Villa, 567 F.3d 507, 513-16 (9th Cir. 2009). We reject Anaya-Santiago’s argument that Medina-Villa is no longer good law.

Anaya-Santiago also contends that he was subject to the 2-year statutory maximum of 8 U.S.C. § 1326(a), rather than the 20-year maximum of section 1326(b)(2), because the Supreme Court implicitly overruled Almendarez-Torres v. United States, 523 U.S. 224 (1998), in Nijhawan v. Holder, 557 U.S. 29 (2009), and United States v. O'Brien, 130 S. Ct. 2169 (2010). We have previously considered and rejected this argument. See United States v. Ruiz-Apolonio, 657 F.3d 907, 920-21 & n.11 (9th Cir. 2011).

AFFIRMED.

2 11-50236

Cites, in this corpus