US v. Alonso Salas

Filing 920100401

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4216 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALONSO FLORES SALAS, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:08-cr-00086-LHT-1) Submitted: March 18, 2010 Decided: April 1, 2010 Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North Carolina, for Appellant. Edward R. Ryan, United States Attorney, Jennifer Lynn Dillon, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alonso Flores Salas pled guilty, without benefit of a plea agreement, to illegal reentry in violation of 8 U.S.C. 1326(a), (b)(2) (2006). year sentence. The district court imposed a five- Salas appeals his sentence, contending that the district court erred by increasing his base offense level by sixteen deported levels after after a finding that he previously for a had been of North Carolina conviction crime violence; specifically, felony indecent liberties with a child. See U.S. Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) (2008). We affirm. We review a sentence for reasonableness under an abuse of discretion standard, Gall v. United States, 552 U.S. 38, 51 (2007), which requires consideration of both the procedural and substantive determine reasonableness the of a sentence. properly Id. We first the whether district court calculated defendant's advisory guidelines range, then consider whether the district court considered the 18 U.S.C. 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. that a sentence imposed within the Id. We presume calculated properly guidelines range is reasonable. 338, 347 (2007) (upholding Rita v. United States, 551 U.S. of reasonableness for presumption 2 within-guideline sentence); United States v. Smith, 566 F.3d 410, 414 (4th Cir. 2009), cert. denied, 130 S. Ct. 1100 (2010). As used in 2L1.2, the term crime of violence means certain specific offenses, including sexual abuse of a minor. USSG 2L1.2, comment. (n.1(B)(iii)). "Sexual abuse of a minor" means "physical or nonphysical misuse or mistreatment of a minor for a purpose associated with sexual gratification." United In States v. Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008). Diaz-Ibarra, attempted "every we held that the was a Georgia crime offense of of felony because a a child molestation of the of violence violation statute an immoral necessarily or indecent involved act in defendant's commission child's presence with the intent to arouse either the defendant or the child." Id. at 353. To determine whether a prior conviction is a crime of violence, we employ the categorical approach dictated by Taylor v. United States, 495 U.S. 575 (1990), and consider only the statutory definition of the crime and the fact of the conviction. 348. See Diaz-Ibarra, 522 F.3d at When the statute under scrutiny includes both violent and offenses, we may consider certain state court non-violent documents to discover whether the defendant's conduct is within the definition of a crime of violence. Id. (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)). However, in Salas' 3 case, the materials included in the record on appeal contain no facts about his conduct from any state court documents. Salas points out that (1) the North Carolina statute does not state that the criminal act must take place in the presence disclose Georgia of the child, he at (2) the the state court and the record (3) does not the whether statute touched issue in victim, unlike Diaz-Ibarra, North Carolina indecent liberties statute has been applied to acts committed outside the presence of the child. S.E.2d 687 (N.C. 1993). Ibarra, his indecent See State v. McClees, 424 Salas thus contends that, under Diazliberties offense is not a crime of violence because "the North Carolina courts have not strictly required that the child know of or be aware of the defendant's act," and instead apply the statute to acts which fall outside the categorical definition of "sexual abuse of a minor" recognized in Diaz-Ibarra. In Diaz-Ibarra, we did not directly address whether a defendant's sexual abuse of a minor must occur in the presence of the victim. However, in the course of finding that no physical or psychological injury to the child is required, we agreed with the Fifth Circuit's definition of "sexual abuse of a minor" as "gratifying or arousing one's sexual desires in the actual or constructive presence of a child[.]" Diaz-Ibarra, 522 F.3d at 351 n.6 (quoting United States v. Izaguirre-Flores, 405 4 F.3d 270, 275 (5th Cir. 2005)). While the North Carolina courts have held that the state's indecent liberties statute applied to conduct that occurred outside the presence of the victim, see State v. Every, 578 S.E.2d 642 (N.C. Ct. App. 2003); McClees, 424 S.E.2d 687, in both cases the state court found that the defendant offense. was constructively Salas present has not when shown he committed there the is a Therefore, that realistic probability that his offense involved conduct that is outside the categorical definition of "sexual abuse of a minor" adopted in Diaz-Ibarra. Salas also maintains that his case is not controlled by United States v. Pierce, 278 F.3d 282 (4th Cir. 2002), which held that a North Carolina conviction for indecent liberties is a "forcible sex offense" and thus a crime of violence for career offender purposes because it presents a serious risk of physical injury under USSG 4B1.2(a)(2) and Application Note 1. the term "crime of violence" is specifically defined Because in the commentary to 2L1.2, Salas is correct that there is no need to look to Pierce. We procedural presumption conclude error of and that that the district has court committed to to rebut his no the Salas failed reasonableness which applies within- guideline sentence. the district court. We therefore affirm the sentence imposed by We dispense with oral argument because the 5 facts and legal before contentions the court are and adequately argument presented not in aid the the materials would decisional process. AFFIRMED 6

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