United States v. Roberto Martinez-Nieto

MEMORANDUM

Roberto Martinez-Nieto appeals his conviction and 46-month sentence for illegal reentry in violation of 8 U.S.C. § 1326 (a). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Although the magistrate judge did not fully comply with Rule 11 of the Federal Rules of Criminal Procedure, this does not constitute plain error because Martinez fails to show a reasonable probability that, but for the errors, he would not have entered his guilty plea. See United States v. Dominguez Benitez, 542 U.S. 74, 83 , 124 S.Ct. 2333 , 159 L.Ed.2d 157 (2004).

The district court did not err by applying a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) for Martinez’s prior conviction of forcible lewd acts upon a child under 14 years old in violation of California Penal Code § 288(b). Because a violation of California Penal Code § 288(a) categorically constitutes “sexual abuse of a minor” and is a “crime of violence” under the Sentencing Guidelines, United States v. Medina-Villa, 567 F.3d 507, 516 (9th Cir.2009), and because California Penal Code § 288(a) “is a lesser or necessarily included offense of [§ 288(b) ],” see People v. Ward, 188 Cal.App.3d 459 , 233…