United States v. Jose Guzman-Alvarado , 457 F. App'x 296 ( 2011 )

UNPUBLISHED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 Decided: December 12, 2011
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 sentenced to a term of forty-six months’
imprisonment. 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).
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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 v. Diaz-Ibarra, 522 F.3d 343, 347 (4th Cir. 2008).
Because Guzman-Alvarado failed to challenge 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 of
specific offenses, including “sexual abuse of a minor.” 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 a minor for a purpose
associated with sexual gratification.” Diaz-Ibarra, 522 F.3d at
350, 352 (internal quotation marks omitted) (construing Georgia
felony attempted child molestation as a “crime of violence”
under USSG § 2L1.2(b)(1)(A)(ii)).
To determine whether Guzman-Alvarado’s indecent
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.’” Diaz-Ibarra, 522
F.3d at 348. 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.” Id. (internal quotation marks and
citation omitted). With respect to N.C. Gen. Stat. § 14-202.1,
we conclude that there is no realistic probability that a
violation of the statute could occur without the “misuse or
maltreatment of a minor for a purpose associated with sexual
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gratification.” Diaz-Ibarra, 522 F.3d at 352 (internal
quotation marks and citation omitted). 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 documents to establish that the
defendant’s convictions for violating N.C. Gen. Stat.
§ 14-202.1(a)(2) constituted “violent felonies” that would
subject him to enhanced sentencing as an armed career criminal
under 18 U.S.C. § 924(e). Vann II, 2011 WL 4793230, at *1-4.
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 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 USSG § 2L1.2. Consequently, we are
satisfied that the district court did not plainly err in
treating Guzman-Alvarado’s prior conviction for indecent
liberties as a crime of violence that warranted the 16-level
increase under USSG § 2L1.2(b)(1)(A)(ii).
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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