United States v. Miguel Fonseca , 369 F. App'x 825 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 05 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 09-50254
Plaintiff - Appellee, D.C. No. 3:08-CR-03610-DMS
v.
MEMORANDUM *
MIGUEL ANGEL FONSECA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Miguel Angel Fonseca appeals from the 36-month sentence imposed
following his guilty-plea conviction for attempted entry after deportation, in
violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291,
*
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).
EG/Research
and we affirm.
Fonseca contends that the district court procedurally erred by failing to
address several of his sentencing arguments and that the sentence was
substantively unreasonable because it failed adequately to reflect the
considerations at 18 U.S.C. § 3553(a). Our review of the record indicates that the
judge’s explanation of the sentence was procedurally adequate under the
circumstances. See Rita v. United States, 551 U.S. 338, 359 (2007); United States
v. Carty, 520 F.3d 984, 995 (9th Cir. 2008) (en banc). Considering the totality of
the circumstances, the 36-month sentence—five months below the advisory
guidelines range—was substantively reasonable. Id. at 993.
Fonseca also contends that application of the 16-level enhancement under
U.S.S.G. § 2L1.2 resulted in improper double-counting of the fact of his prior
conviction, because the prior conviction was also considered in calculating his
criminal history category. This argument is foreclosed by United States v. Garcia-
Cardenas, 555 F.3d 1049 (9th Cir. 2009) (per curiam).
Finally, Fonseca contends that the district court erred in applying the 16-
level enhancement under U.S.S.G. § 2L1.2 because Fonseca’s 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
EG/Research 2 09-50254
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). Fonseca’s
related contention that Nijhawan v. Holder, 129 S. Ct. 2294 (2009), effectively
overruled Medina-Villa also fails. See Nijhawan, 129 S. Ct. at 2300.
AFFIRMED.
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