United States v. Salas ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4216
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALONSO FLORES SALAS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00086-LHT-1)
Submitted: March 18, 2010 Decided: April 1, 2010
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina, for Appellant. Edward R. Ryan, United States
Attorney, Jennifer Lynn Dillon, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alonso Flores Salas pled guilty, without benefit of a
plea agreement, to illegal reentry in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2006). The district court imposed a five-
year sentence. Salas appeals his sentence, contending that the
district court erred by increasing his base offense level by
sixteen levels after finding that he previously had been
deported after a North Carolina conviction for a crime of
violence; specifically, felony indecent liberties with a child.
See U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii)
(2008). We affirm.
We review a sentence for reasonableness under an abuse
of discretion standard, Gall v. United States, 552 U.S. 38, 51
(2007), which requires consideration of both the procedural and
substantive reasonableness of a sentence. Id. We first
determine whether the district court properly calculated the
defendant’s advisory guidelines range, then consider whether the
district court considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. We presume
that a sentence imposed within the properly calculated
guidelines range is reasonable. Rita v. United States, 551 U.S.
338, 347 (2007) (upholding presumption of reasonableness for
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within-guideline sentence); United States v. Smith, 566 F.3d
410, 414 (4th Cir. 2009), cert. denied, 130 S. Ct. 1100 (2010).
As used in § 2L1.2, the term crime of violence means
certain specific offenses, including sexual abuse of a minor.
USSG § 2L1.2, comment. (n.1(B)(iii)). “Sexual abuse of a minor”
means “physical or nonphysical misuse or mistreatment of a minor
for a purpose associated with sexual gratification.” United
States v. Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008). In
Diaz-Ibarra, we held that the Georgia offense of felony
attempted child molestation was a crime of violence because
“every violation of the statute necessarily involved a
defendant’s commission of an immoral or indecent act in a
child’s presence with the intent to arouse either the defendant
or the child.” Id. at 353. To determine whether a prior
conviction is a crime of violence, we employ the categorical
approach dictated by Taylor v. United States, 495 U.S. 575(1990), and consider only the statutory definition of the crime
and the fact of the conviction. See Diaz-Ibarra, 522 F.3d at
348. When the statute under scrutiny includes both violent and
non-violent offenses, we may consider certain state court
documents to discover whether the defendant’s conduct is within
the definition of a crime of violence. Id. (quoting Shepard v.
United States, 544 U.S. 13, 26 (2005)). However, in Salas’
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case, the materials included in the record on appeal contain no
facts about his conduct from any state court documents.
Salas points out that (1) the North Carolina statute
does not state that the criminal act must take place in the
presence of the child, (2) the state court record does not
disclose whether he touched the victim, and (3) unlike the
Georgia statute at issue in Diaz-Ibarra, the North Carolina
indecent liberties statute has been applied to acts committed
outside the presence of the child. See State v. McClees, 424
S.E.2d 687 (N.C. 1993). Salas thus contends that, under Diaz-
Ibarra, his indecent liberties offense is not a crime of
violence because “the North Carolina courts have not strictly
required that the child know of or be aware of the defendant’s
act,” and instead apply the statute to acts which fall outside
the categorical definition of “sexual abuse of a minor”
recognized in Diaz-Ibarra.
In Diaz-Ibarra, we did not directly address whether a
defendant’s sexual abuse of a minor must occur in the presence
of the victim. However, in the course of finding that no
physical or psychological injury to the child is required, we
agreed with the Fifth Circuit’s definition of “sexual abuse of a
minor” as “gratifying or arousing one’s sexual desires in the
actual or constructive presence of a child[.]” Diaz-Ibarra, 522
F.3d at 351 n.6 (quoting United States v. Izaguirre-Flores, 405
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F.3d 270, 275 (5th Cir. 2005)). While the North Carolina courts
have held that the state’s indecent liberties statute applied to
conduct that occurred outside the presence of the victim, see
State v. Every, 578 S.E.2d 642 (N.C. Ct. App. 2003); McClees,
424 S.E.2d 687, in both cases the state court found that the
defendant was constructively present when he committed the
offense. Therefore, Salas has not shown that there is a
realistic probability that his offense involved conduct that is
outside the categorical definition of “sexual abuse of a minor”
adopted in Diaz-Ibarra.
Salas also maintains that his case is not controlled
by United States v. Pierce, 278 F.3d 282 (4th Cir. 2002), which
held that a North Carolina conviction for indecent liberties is
a “forcible sex offense” and thus a crime of violence for career
offender purposes because it presents a serious risk of physical
injury under USSG § 4B1.2(a)(2) and Application Note 1. Because
the term “crime of violence” is specifically defined in the
commentary to § 2L1.2, Salas is correct that there is no need to
look to Pierce.
We conclude that the district court committed no
procedural error and that Salas has failed to rebut the
presumption of reasonableness which applies to his within-
guideline sentence. We therefore affirm the sentence imposed by
the district court. We dispense with oral argument because the
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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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