United States of America v. Roberto Martinez-Nieto

* 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERTO MARTINEZ-NIETO,
Defendant - Appellant.
No. 09-10213
D.C. No. 4:09-CR-00001-JMR-
BPV-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Submitted June 11, 2012 **
San Francisco, California
Before: HUG, RAWLINSON, and IKUTA, Circuit Judges.
Roberto Martinez-Nieto appeals his conviction and 46-month sentence for
illegal reentry in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
FILED
JUN 15 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Although the magistrate judge did not fully comply with Rule 11 of the
Federal Rules of Criminal Procedure, this does not constitute plain error because
Martinez fails to show a reasonable probability that, but for the errors, he would
not have entered his guilty plea. See United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004).
The district court did not err by applying a sixteen-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) for Martinez’s prior conviction of forcible lewd acts
upon a child under 14 years old in violation of California Penal Code § 288(b).
Because a violation of California Penal Code § 288(a) categorically constitutes
“sexual abuse of a minor” and is a “crime of violence” under the Sentencing
Guidelines, United States v. Medina-Villa, 567 F.3d 507, 516 (9th Cir. 2009), and
because California Penal Code § 288(a) “is a lesser or necessarily included offense
of [§ 288(b)],” see People v. Ward, 233 Cal. Rptr. 477, 485 (Ct. App. 1986),
Martinez’s conviction under § 288(b), like convictions under § 288(a),
categorically constitutes a “crime of violence” for sentencing enhancement
purposes.
Martinez’s argument that the district court erred when it denied Martinez’s
request for a downward departure fails because, reviewing only for reasonableness,
see United States v. Mohamed, 459 F.3d 979, 986–87 (9th Cir. 2006), the record

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reflects that Martinez’s mid-Guidelines sentence was reasonable in light of the
totality of the circumstances and the sentencing factors set forth in 18 U.S.C.
§ 3553(a). See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.

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