United States of America v. Rafael Molina-Martinez

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. Appellant. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAFAEL MOLINA-MARTINEZ,
Defendant - Appellant.
No. 11-10092
D.C. No. 4:10-cr-01809-FRZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted February 21, 2012**
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Rafael Molina-Martinez appeals from the 57-month sentence imposed
following his jury-trial conviction for reentry after deportation, in violation of 8
U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
FEB 22 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-10092 2
Molina-Martinez contends that the district court erred when it applied a 16-
level enhancement, under 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 United
States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999), holding that a
violation of Cal. Penal Code § 288(a) is categorically a crime of violence, is
inconsistent with Johnson v. United States, 130 S. Ct. 1265 (2010). This
contention lacks merit. See United States v. Orozco-Acosta, 607 F.3d 1156, 1166
(9th Cir. 2010) (citing United States v. Medina-Villa, 567 F.3d 507 (9th Cir.
2009)). Accordingly, we decline Molina-Martinez’s invitation that we seek en
banc review of this issue.
AFFIRMED.

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