United States of America v. Jose Ruben Nieto-Resendiz

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
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE RUBEN NIETO-RESENDIZ,
Defendant - Appellant.
No. 08-50580
D.C. No. 3:07-cr-03347-JTM
MEMORANDUM *
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
FILED
DEC 17 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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.

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