FILED

NOT FOR PUBLICATION

MAR 24 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10410

Plaintiff-Appellee, D.C. No. 3:18-cr-00268-WHO-1 v.

ANTONIO HERNANDEZ-LINCONA, MEMORANDUM*

AKA Antonio Hernandez, AKA Antonio Hernandez-Licona, AKA Antonio Licona- Hernandez, AKA Antonio Lincona- Hernandez,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding

Argued and Submitted March 10, 2021 San Francisco, California

Before: GOULD and FRIEDLAND, Circuit Judges, and ERICKSEN,** District Judge.

Antonio Hernandez-Lincona (“Hernandez-Lincona”) appeals the district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota, sitting by designation. court’s denial of his motion to dismiss an indictment charging him under 8 U.S.C.

§ 1326 with illegal re-entry after deportation. Because the parties are familiar with

the facts and procedural history of the case, we recite only those facts necessary to

decide this appeal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review a district court’s denial of a motion to dismiss an indictment de

novo. United States v. Ziskin, 360 F.3d 934, 942 (9th Cir. 2003). “We review de

novo whether a statute is void for vagueness.” United States v. Hungerford, 465

F.3d 1113, 1116 (9th Cir. 2006).

Hernandez-Lincona asserts that our definition of “sexual abuse of a minor”

under 8 U.S.C. §1101(a)(43)(A) is “clearly irreconcilable,” Miller v. Gammie, 335

F.3d 889, 900 (9th Cir. 2003) (en banc), with the Supreme Court’s decision in

Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017). Yet in the years since

Esquivel-Quintana was decided, we have at least twice reaffirmed our definition of

“sexual abuse of a minor” in published decisions. See Quintero-Cisneros v.

Sessions, 891 F.3d 1197, 1200 (9th Cir. 2018); Mero v. Barr, 957 F.3d 1021, 1023

(9th Cir. 2020). Because we are bound by our decisions in Quintero-Cisneros and

Mero in the absence of an even more recent Supreme Court or en banc decision to

the contrary, we reject Hernandez-Lincona’s challenge.

Next, Hernandez-Lincona contends that our previous decisions concluding

that California Penal Code § 288(a) is categorically “sexual abuse of a minor” are

2 clearly irreconcilable with the Supreme Court’s categorical approach

jurisprudence, as set forth in cases such as Moncrieffe v. Holder, 569 U.S. 184

(2013), and Descamps v. United States, 570 U.S. 254 (2013). Again, his argument

is foreclosed by our precedent. In Flores v. Barr, 930 F.3d 1082 (9th Cir. 2019),

we reaffirmed that, under the categorical approach set forth in Supreme Court

decisions, “California Penal Code § 288(a) categorically involves ‘sexual abuse of

a minor’ under 8 U.S.C. § 1101(a)(43)(A).” Id. at 1087 (quoting United States v.

Farmer, 627 F.3d 416, 420 (9th Cir. 2010)).1

Finally, Hernandez-Lincona asserts that our definition of “sexual abuse of a

minor” is unconstitutionally vague. We disagree, having recently rejected a similar

challenge to an even broader phrase in United States v. Hudson, 986 F.3d 1206,

1216 (9th Cir. 2021). Hudson involved a conviction under a federal statute that

imposes additional penalties on defendants who have previously been convicted of

offenses “relating to aggravated sexual abuse, sexual abuse, or abusive sexual

conduct involving a minor or ward.” Id. at 1211 (quoting 18 U.S.C. § 2252(b)(2)).

1 Hernandez-Lincona’s reliance on Shular v. United States, 140 S. Ct. 779 (2020)—a case decided after Flores—fares no better. Shular did not modify or displace the “generic” categorical approach as described in Taylor v. United States, 495 U.S. 575 (1990), which Hernandez-Lincona acknowledges is the correct approach here. See Shular, 140 S. Ct. at 783 (describing the “generic” categorical approach, which requires courts to “define the offense so that [they] can compare elements, not labels”). So even after Shular, Flores continues to bind us on the issue of irreconcilability.

3 The definition Hernandez-Lincona challenges here is more precise: it lacks the

phrase “relating to,” which had a “broadening effect” on the statute in Hudson. Id.

at 1213. We are bound by Hudson, and likewise conclude that our definition of

“sexual abuse of a minor” as the term is used in § 1101(a)(43)(A) is not void for

vagueness.

AFFIRMED.

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