US v. Alonso Salas, No. 09-4216 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4216 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALONSO FLORES SALAS, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 § 1326(a), (b)(2) (2006). year sentence. reentry in violation of 8 U.S.C. The district court imposed a five- Salas appeals his sentence, contending that the district court erred by increasing his base offense level by sixteen levels deported after after a finding North that Carolina he previously conviction for a had been crime of violence; specifically, felony indecent liberties with a child. See U.S. (2008). Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) 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 whether the of a district sentence. court Id. properly We first calculated the 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 guidelines range is reasonable. 338, 347 (2007) (upholding the Id. We presume properly calculated Rita v. United States, 551 U.S. presumption 2 of reasonableness for 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 States v. Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008). Diaz-Ibarra, attempted every we child held molestation violation defendant s that of commission was the of the Georgia a crime statute an offense of of felony violence because necessarily immoral or In involved indecent act a in a 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 non-violent offenses, we may consider certain state court 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)). 3 However, in Salas 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 of disclose whether Georgia the statute child, he at (2) the touched issue in state the court victim, Diaz-Ibarra, record and the not unlike (3) does the 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 was offense. constructively Therefore, Salas present has not when he shown committed that there the is a 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. Because the in term crime of violence is specifically defined 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 the that Salas reasonableness district has which court failed applies committed to to rebut his no the within- guideline sentence. We therefore affirm the sentence imposed by the district court. We dispense with oral argument because the 5 facts and materials legal before contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 6

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