US v. Roberto Radilla-Aguilar, No. 11-4770 (4th Cir. 2012)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4770 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERTO RADILLA-AGUILAR, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, District Judge. (4:10-cr-00104-FL-1) Argued: September 20, 2012 Decided: December 7, 2012 Before WILKINSON, DIAZ, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC, Covington, Kentucky, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Appellant Roberto Radilla-Aguilar pled guilty to unlawful reentry of a deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2), imprisonment. that the and was sentenced Guidelines forty-seven months Radilla-Aguilar appeals his sentence, contending district court in increase to offense his Manual § erred when level it under 2L1.2(b)(1)(A)(ii) added the a sixteen-level U.S. (2010), on Sentencing the ground that he had previously been convicted of a crime of violence. For the reasons that follow, we affirm. I. Roberto Radilla-Aguilar is a native and citizen of Mexico and an illegal alien in the United States. In January 2009, Radilla-Aguilar pled guilty to two counts of indecent liberties with a child, in violation of section 14-202.1 of the General Statutes of North Carolina. The United States then deported Radilla-Aguilar. Soon after his deportation returned to the United States. in 2009, Radilla-Aguilar In December 2010, a federal grand jury in the Eastern District of North Carolina indicted Radilla-Aguilar, charging him with illegally returning to the United States after having been deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. 2 § 1326(a) and (b)(2). Radilla-Aguilar pled guilty to the indictment. Thereafter, report (PSR) a probation for officer Radilla-Aguilar. prepared The PSR a presentence recommended an advisory Guidelines range of forty-six to fifty-seven months imprisonment. probation As part of the Guidelines range calculation, the officer Radilla-Aguilar s that applied base Radilla-Aguilar s liberties constituted a sixteen-level offense North a level Carolina crime based enhancement on his conviction of violence before and to conclusion for indecent under Guidelines his sentencing section 2L1.2(b)(1)(A)(ii). Radilla-Aguilar objected at hearing to the PSR s characterization of his indecent liberties conviction as overruled a crime of violence. Radilla-Aguilar s The objection, district court concluding that application of the enhancement was warranted because RadillaAguilar s previous conviction for indecent liberties qualified as a crime of violence. Accordingly, the district court sentenced Radilla-Aguilar to forty-seven months imprisonment, which falls within the recommended advisory Guidelines range. Radilla-Aguilar timely appealed. pursuant to 28 U.S.C. § 1291. 3 We have jurisdiction II. A. Radilla-Aguilar asserts that his prior conviction of indecent liberties with a child did not constitute a crime of violence. Whether a prior conviction is a crime of violence is a legal issue that we review de novo. United States v. Diaz- Ibarra, 522 F.3d 343, 347 (4th Cir. 2008). Radilla-Aguilar relies on our recent decision in United States v. Vann, 660 F.3d 771 (4th Cir. 2011) (en banc) (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)). 772-75. Vann, 660 F.3d at However, this case is unhelpful to him. Radilla-Aguilar s reliance on Vann is misplaced because Vann does not address the term crime of violence as it is defined in Guidelines section 2L1.2. Rather, Vann 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 ultimately determined that the government had failed to produce enough Shepard-approved documents, Shepard v. United States, 544 U.S. 13 (2005), to establish that the defendant s 4 convictions for violating section 14-202.1(a)(2) of the General Statutes of subjecting North him Carolina to enhanced constituted sentencing criminal under 18 U.S.C. § 924(e). violent as an felonies armed career Vann, 660 F.3d at 773-76. Because our decision in Vann addressed a different enhancement provision than the one at issue in this case, our decision in Vann does not control the outcome in this case. B. Instead, our analysis begins with Guidelines section 2L1.2, Application Note violence. convicted States, 1(B)(iii) For of the enhancement defendants unlawfully Guidelines if and the the definition like entering mandate defendant crime of who are Radilla-Aguilar or a of remaining sixteen-level previously in the United offense was level deported or unlawfully remained in the United States after a conviction for a felony that is § 2L1.2(b)(1)(A)(ii). a crime of violence. U.S.S.G. The definition encompasses a number of specific offenses, including sexual abuse of a minor. We have 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 it must be a crime that prohibits the physical or nonphysical misuse or maltreatment of associated with sexual gratification. 5 a minor for a purpose Diaz-Ibarra, 522 F.3d at 350, 352 (quoting United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001)) (internal quotation marks omitted)(construing Georgia felony attempted child molestation as a crime of violence under Guidelines section 2L1.2(b)(1)(A)(ii)). To determine whether Radilla-Aguilar s indecent liberties conviction is a crime of violence, as defined by Guidelines section 2L1.2, we may apply the categorical approach set out by 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. In applying the categorical approach, we look at only the essential elements of the offense and the fact of conviction. Cir. 2011). United States v. Baxter, 642 F.3d 475, 476 (4th This 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. To find otherwise, there must be a realistic probability, not a would its statute apply Diaz-Ibarra, 522 theoretical to possibility, conduct definition of crime of violence. that that falls the state outside the Id. (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). The specific inquiry here is whether a violation of section 14-202.1 of the General Statutes of North Carolina can occur without the misuse or maltreatment of a minor for a purpose 6 associated with sexual gratification. 352 (quoting Padilla-Reyes, quotation marks omitted). there is no realistic 247 Diaz-Ibarra, 522 F.3d at F.3d at 1163) (internal With respect to section 14-202.1, probability that a violation of the statute can occur without misuse or maltreatment of a minor for a purpose associated with sexual gratification. Padilla-Reyes, omitted). 247 F.3d at 1163) (internal Id. (quoting quotation marks Therefore, we apply the categorical approach. Using that approach, we conclude that a violation of section 14-202.1 constitutes a section 2L1.2. crime of violence for purposes of Guidelines Hence, the district court committed no error when it applied the sixteen-level increase in offense level. III. We therefore affirm the sentence imposed by the district court. AFFIRMED 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.