US v. Jose Guzman-Alvarado

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:10-cr-00139-RJC-1. Copies to all parties and the district court/agency. [998741087].. [11-4217]

Appeal: 11-4217

Document: 42

Date Filed: 12/12/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4217

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE GUZMAN-ALVARADO, a/k/a Jose Alvarado,
Defendant -

Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00139-RJC-1)

Submitted:

November 22, 2011

Before WILKINSON and
Senior Circuit Judge.

GREGORY,

Decided:

Circuit

December 12, 2011

Judges,

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Haakon Thorsen, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Richard Lee Edwards,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jose Guzman-Alvarado pled guilty to unlawful reentry
of a deported alien, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006),

and

was

imprisonment.

sentenced

to

a

term

of

forty-six

months’

Guzman-Alvarado appeals his sentence, contending

that the district court plainly erred when it added a 16-level
increase in his offense level under U.S. Sentencing Guidelines
Manual § 2L1.2(b)(1)(A)(ii) (2010), on the ground that he had
previously been deported after being convicted of a crime of
violence.

We affirm.
The enhancement Guzman-Alvarado challenges was based

on his prior conviction, pursuant to an Alford * plea, of four
counts of indecent liberties with a child, in violation of N.C.
Gen.

Stat.

§ 14-202.1

(2009).

Guzman-Alvarado

contends

that

(1) the district court erred in failing to conduct an analysis
of

the

indecent

liberties

statute

under

Shepard

v.

United

States, 544 U.S. 13 (2005), to determine whether the statute
categorically qualified as a crime of violence; (2) the statute
is

not

categorically

a

crime

of

violence;

and

(3)

his

conviction, pursuant to an Alford plea, could not be used to
support the enhancement because he did not admit any facts.

*

North Carolina v. Alford, 400 U.S. 25 (1970).

2

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Generally, whether a prior conviction is a crime of
violence is a legal issue that is reviewed de novo.

United

States

2008).

v.

Because

Diaz-Ibarra,

522

Guzman-Alvarado

F.3d

failed

343,
to

347

(4th

challenge

Cir.
the

16-level

enhancement in the district court, he must show plain error.
United States v. Olano, 507 U.S. 725, 732-37 (1993) (unpreserved
error may be corrected only if error occurred, that was plain,
and that affects substantial rights, and if failure to correct
error would seriously affect the fairness, integrity, or public
reputation of judicial proceedings); United States v. Lynn, 592
F.3d 572, 576-77 (4th Cir. 2010).
Guzman-Alvarado

relies

on

our

decisions

in

United

States v. Vann, ___ F.3d ___, 2011 WL 4793230 (4th Cir. Oct. 11,
2011) (en banc) (Vann II)

(using modified categorical approach

to determine that defendant’s prior North Carolina convictions
for

indecent

liberties

were

not

“violent

felonies”

under

18

U.S.C. § 924(e) (2006)), and United States v. Alston, 611 F.3d
219 (4th Cir. 2010) (applying modified categorical approach to
determine

that

defendant’s

prior

Alford

plea

to

Maryland

second-degree assault did not establish a “violent felony” under
18 U.S.C. § 924(e)).

Neither case is helpful to him.

The term “crime of violence” is defined in Application
Note

1(B)(iii)

to

USSG

§ 2L1.2

and

encompasses

a

number

specific offenses, including “sexual abuse of a minor.”
3

of

We have

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held that “sexual abuse of a minor” need not be a crime that
requires the use, or threatened use, of physical force against
another, but must be a crime that prohibits the “physical or
nonphysical

misuse

or

maltreatment

of

associated with sexual gratification.”

a

minor

for

a

purpose

Diaz-Ibarra, 522 F.3d at

350, 352 (internal quotation marks omitted) (construing Georgia
felony

attempted

child

molestation

as

a

“crime

of

violence”

Guzman-Alvarado’s

indecent

under USSG § 2L1.2(b)(1)(A)(ii)).
To

determine

whether

liberties conviction was a crime of violence as defined in USSG
§ 2L1.2,

we

may

apply

the

categorical

approach

set

out

in

Taylor v. United States, 495 U.S. 575 (1990), unless the statute
proscribes a number of offenses, not all of which qualify as
crimes of violence.

The analysis involves deciding whether “the

conduct criminalized by the statute, including the most innocent
conduct, qualifies as a ‘crime of violence.’”
F.3d at 348.

Diaz-Ibarra, 522

To find otherwise, “there must be a realistic

possibility, not a theoretical possibility, that the state would
apply its statute to conduct that falls outside the definition
of

crime

of

violence.”

citation omitted).
we

conclude

violation

of

Id.

(internal

quotation

marks

and

With respect to N.C. Gen. Stat. § 14-202.1,

that

there

the

statute

is

no

could

realistic
occur

probability

without

the

that

“misuse

a
or

maltreatment of a minor for a purpose associated with sexual
4

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Date Filed: 12/12/2011

gratification.”
quotation

522

Diaz-Ibarra,

marks

and

citation

Page: 5 of 6

F.3d

at

omitted).

352

(internal

Therefore,

the

categorical approach is sufficient to establish that a violation
of N.C. Gen. Stat. § 14-202.1 constitutes a crime of violence
for purposes of USSG § 2L1.2.
Guzman-Alvarado’s

reliance

on

Vann

II

is

misplaced

because Vann II does not address the term “crime of violence” as
it is defined in USSG § 2L1.2.

Rather, Vann II held that the

North Carolina indecent liberties statute, viewed in light of
Begay v. United States, 553 U.S. 137 (2008), proscribes both
violent and non-violent felonies, as the term “violent felony”
is

defined

in

18

U.S.C.

§ 924(e)(2)(B).

Assuming,

without

deciding, that the modified categorical approach was the correct
one, Vann II ultimately determined that the government had not
produced

Shepard-approved

defendant’s

convictions

§ 14-202.1(a)(2)

documents
for

constituted

to

establish

violating
“violent

N.C.

felonies”

that

Gen.
that

the
Stat.
would

subject him to enhanced sentencing as an armed career criminal
Vann II, 2011 WL 4793230, at *1-4.

under 18 U.S.C. § 924(e).

Guzman-Alvarado asserts that his Alford plea, entered
without his admission of guilt or any facts, cannot be used to
establish a predicate offense.

See Alston, 611 F.3d at 226.

However, because North Carolina’s indecent liberties statute is
categorically

a

crime

of

violence
5

under

USSG

§ 2L1.2,

the

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district court did not need to consider any facts to find that
Guzman-Alvarado’s prior conviction for indecent liberties was a
crime

of

violence

under

the

USSG

satisfied

that

treating

Guzman-Alvarado’s

§ 2L1.2.

we

are

court

district

Consequently,
not

err

in

prior

did

plainly

conviction

for

indecent

liberties as a crime of violence that warranted the 16-level
increase under USSG § 2L1.2(b)(1)(A)(ii).
We
district
facts

court.

and

materials

therefore

legal
before

We

affirm

dispense

the
with

sentence
oral

argument

contentions

are

adequately

the

and

argument

court

imposed

by

the

because

the

presented

would

not

in

the

aid

the

decisional process.

AFFIRMED

6