US v. Alonso Salas

Filing 920100401

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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