United States of America v. Jesus Herrera-Torres

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS HERRERA-TORRES,
Defendant - Appellant.
No. 09-50458
D.C. No. 3:08-cr-01094-JM
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Jesus Herrera-Torres appeals from the 48-month sentence imposed
following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
OCT 04 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-50458 2
Herrera-Torres contends that his sentence is substantively unreasonable
under United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), in light of
his mitigating personal circumstances and the age of the prior conviction that was
the basis for a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The
record reflects that the 48-month sentence is substantively reasonable in light of
the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-52
(2007); cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir.
2009).
Herrera-Torres also contends that United States v. Medina-Villa, 567 F.3d
507 (9th Cir. 2008), that held that a conviction under California Penal Code section
288(a) constitutes “sexual abuse of a minor” and qualifies for the crime of violence
sentence enhancement, should be overruled because it conflicts with
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). This
contention is foreclosed. See Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013-14
(9th Cir. 2009); see also Robbins v. Carey, 481 F.3d 1143, 1149 n.3 (9th Cir. 2007)
(In the absence of intervening authority, a three-judge panel is without authority to
overrule Circuit precedent.).

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09-50458 3
Last, as Herrera-Torres concedes, his contention that Almendarez-Torres v.
United States, 523 U.S. 224 (1998), should be overruled is foreclosed. See United
States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc).
AFFIRMED.

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