USA V. GERMAN ACOSTA-SALINAS, No. 13-10452 (9th Cir. 2014)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS AUGUST 25 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 13-10452 D.C. No. CR 12-1495-TUC-CKJ MEMORANDUM* GERMAN ACOSTA-SALINAS, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Argued and Submitted August 11, 2014 San Francisco, California Before: SILVERMAN and CLIFTON, Circuit Judges, and WATSON, District Judge.** German Acosta-Salinas appeals his conviction by conditional guilty plea and sentence for illegal reentry after deportation in violation of 8 U.S.C. § 1326. He * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Derrick Kahala Watson, District Judge for the U.S. District Court for the District of Hawaii, sitting by designation. challenges both the district court s (1) denial of his 8 U.S.C. § 1326(d) motion collaterally attacking his prior deportation, and (2) 16-level sentencing enhancement based on a prior conviction for a crime of violence. The denial of a motion to dismiss an indictment under 8 U.S.C. § 1326(d) involves mixed questions of law and fact; we review the legal claims de novo and the district court s findings of fact for clear error. United States v. Ramos, 623 F.3d 672, 679-80 (9th Cir. 2010). We review de novo the district court s determination that a prior conviction constitutes a crime of violence under the United States Sentencing Guidelines ( U.S.S.G. ). United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1243 (9th Cir. 2014). We affirm. Acosta-Salinas moved to dismiss the indictment pursuant to 8 U.S.C. § 1326(d), arguing that his prior conviction for sexual abuse under Arizona Revised Statutes ( A.R.S. ) § 13-1404 was not a crime involving moral turpitude and that the immigration judge therefore incorrectly advised him that he was ineligible for relief. We apply the modified categorical approach. See United States v. Quintero-Junco, 754 F.3d 746, 751-52 (9th Cir. 2014). Pursuant to that approach, and upon consideration of Acosta-Salinas record of conviction, we conclude that both the immigration judge and district court correctly determined Acosta-Salinas sexual abuse conviction to be a crime of moral turpitude because Acosta-Salinas 2 intended sexual contact with the adult victim was without her consent and actually harmed her. See Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir. 2013). The district court properly denied Acosta-Salinas Motion Challenging Prior Deportation. Acosta-Salinas also argues that his conviction for sexual abuse is not a forcible sex offense and that the district court erred in applying a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A) for a crime of violence. A conviction under A.R.S. § 13-1404 for non-consensual sexual contact with a person over fifteen years of age is a forcible sex offense, such that it constitutes a crime of violence for purposes of the enhancement. See Quintero-Junco, 754 F.3d at 753-54. The sentence imposed by the district judge was not in error. AFFIRMED. 3
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