United States of America v. Ascencion Hernandez-Jimenez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ASCENCION HERNANDEZ-JIMENEZ,
Defendant-Appellant.
No. 16-50087
D.C. No. 3:15-cr-02810-WQH
MEMORANDUM*
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).
FILED
NOV 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-50087
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.

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3 16-50087
Ct. 2214 (2017).
AFFIRMED.

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