United States v. Gerardo Garcia-Antonio , 481 F. App'x 361 ( 2012 )

FILED
NOT FOR PUBLICATION SEP 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10084
Plaintiff - Appellee, D.C. No. 2:08-cr-01208-MHM
v.
MEMORANDUM *
GERARDO GARCIA-ANTONIO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Gerardo Garcia-Antonio appeals from the 36-month sentence imposed
following his guilty-plea conviction for reentry after deportation, in violation of 8
U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Garcia-Antonio contends that the district court erred in applying a 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) on the basis of his prior
California conviction for lewd and lascivious acts upon a child. The presentence
report, to which Garcia-Antonio did not object, quoted from Garcia-Antonio’s
state-court plea agreement, in which he admitted facts that satisfy the generic
definition of sexual abuse of a minor. See United States v. Castro, 607 F.3d 566,
569-70 (9th Cir. 2010). Under these circumstances, the district court did not
plainly err in applying the enhancement. See United States v. Gonzalez-Aparicio,
663 F.3d 419, 432-33 (9th Cir. 2011).
Garcia-Antonio also contends that the appeal is moot because he has been
released and deported. This contention fails because he is still serving his term of
supervised release. See United States v. Rivas-Gonzalez, 384 F.3d 1034, 1042 (9th
Cir. 2004).
AFFIRMED.
2 09-10084