USA V. GERARDO GARCIA-ANTONIO, No. 09-10084 (9th Cir. 2012)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on April 11, 2011.
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FILED SEP 21 2012 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-10084 D.C. No. 2:08-cr-01208-MHM v. MEMORANDUM * GERARDO GARCIA-ANTONIO, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Mary H. Murguia, District Judge, Presiding Submitted September 10, 2012 ** Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges. Gerardo Garcia-Antonio appeals from the 36-month sentence imposed following his guilty-plea conviction for reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Garcia-Antonio contends that the district court erred in applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) on the basis of his prior California conviction for lewd and lascivious acts upon a child. The presentence report, to which Garcia-Antonio did not object, quoted from Garcia-Antonio s state-court plea agreement, in which he admitted facts that satisfy the generic definition of sexual abuse of a minor. See United States v. Castro, 607 F.3d 566, 569-70 (9th Cir. 2010). Under these circumstances, the district court did not plainly err in applying the enhancement. See United States v. Gonzalez-Aparicio, 663 F.3d 419, 432-33 (9th Cir. 2011). Garcia-Antonio also contends that the appeal is moot because he has been released and deported. This contention fails because he is still serving his term of supervised release. See United States v. Rivas-Gonzalez, 384 F.3d 1034, 1042 (9th Cir. 2004). AFFIRMED. 2 09-10084
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