United States v. Jose Alonso-Gonzalez , 501 F. App'x 236 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4581
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE JUAN ALONSO-GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:10-cr-00146-BO-1)
Submitted: December 11, 2012 Decided: December 20, 2012
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Juan Alonso-Gonzalez appeals the thirty-seven-
month sentence imposed following his guilty plea, without the
benefit of a plea agreement, to illegal reentry by an alien who
had been convicted of an aggravated felony, in violation of 8
U.S.C. § 1326(a), (b)(2) (2006). On appeal, Alonso-Gonzalez
challenges the district court’s application of a sixteen-level
sentencing enhancement, pursuant to U.S. Sentencing Guidelines
Manual (USSG) § 2L1.2(b)(1)(A)(ii) (2010), upon finding that he
previously had been deported after being convicted of a crime of
violence. Finding no error, we affirm.
In reviewing a sentence, we must ensure that the
district court did not commit any “significant procedural
error,” such as failing to properly calculate the applicable
Guidelines range. Gall v. United States, 552 U.S. 38, 51
(2007). We review de novo the issue of whether a prior
conviction constitutes a crime of violence for purposes of a
sentencing enhancement. United States v. Diaz-Ibarra, 522 F.3d
343, 347 (4th Cir. 2008).
The Guidelines mandate a sixteen-level increase to the
defendant’s base offense level if he previously was deported
from the United States following “a conviction for a felony that
is . . . a crime of violence.” USSG § 2L1.2(b)(1)(A)(ii).
Here, the district court applied the sentencing enhancement
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based on Alonso-Gonzalez’s prior conviction, pursuant to a
guilty plea, for taking indecent liberties with a child, in
violation of N.C. Gen. Stat. § 14-202.1 (2009). Alonso-Gonzalez
relies on our recent decision in United States v. Vann, 660 F.3d
771 (4th Cir. 2011) (en banc), to argue that this conviction
does not constitute a “crime of violence” for purposes of USSG
§ 2L1.2(b)(1)(A)(ii).
Alonso-Gonzalez’s reliance on Vann is misplaced
because Vann does not address the interpretation of “crime of
violence” as it is defined in USSG § 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) (2006). Thus,
our decision in Vann does not determine the outcome in this
case.
For purposes of USSG § 2L1.2(b)(1)(A)(ii), a “crime of
violence” includes “sexual abuse of a minor.” USSG § 2L1.2 cmt.
n.1(B)(iii). We have concluded that “sexual abuse of a minor”
does not require the use, or threatened use, of physical force
against another, but “means the perpetrator’s 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).
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To determine whether Alonso-Gonzalez’s indecent
liberties conviction was a crime of violence for purposes of
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. “Under Taylor, we look only to the
statutory definition of the state crime and the fact of
conviction to determine 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
the categorical approach inapplicable, “there must be a
realistic probability, 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
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 gratification.”
Diaz–Ibarra, 522 F.3d at 352 (internal quotation marks omitted).
Therefore, we apply the categorical approach. Using that
approach, we conclude that a violation of N.C. Gen. Stat. § 14–
202.1 constitutes a crime of violence for purposes of USSG
§ 2L1.2.
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We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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