United States v. Miguel Mendez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 29 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10015
Plaintiff - Appellee, D.C. No. 4:12-cr-00848-RCC-
BGM-1
v.
MIGUEL ANDRES MENDEZ, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Submitted January 14, 2014**
San Francisco, California
Before: GRABER and NGUYEN, Circuit Judges, and DEARIE, Senior District
Judge.***
*
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).
***
The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Miguel Andres Mendez appeals his sentence following a plea of guilty to a
violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742, and we affirm.
The district court did not plainly err in imposing a sixteen-level
enhancement pursuant to United States Sentencing Guidelines (“U.S.S.G.”)
§ 2L1.2. See United States v. Gallegos-Galindo, 704 F.3d 1269, 1272 (9th Cir.
2013) (stating that the court reviews for plain error when a defendant fails to raise
an issue before the district court). Mendez was convicted of violating Wisconsin
Statute § 940.225(3), which prohibits either sexual intercourse without consent or
sexual contact without consent. Applying the modified categorical approach,
Mendez’s conviction qualifies as a “crime of violence” because it constitutes a
“forcible sex offense” under U.S.S.G. § 2L1.2. See Descamps v. United States, —
U.S. —, 133 S. Ct. 2276, 2281–82 (2013) (permitting application of the modified
categorical approach only if a defendant was convicted of violating a divisible
statute); Suazo Perez v. Mukasey, 512 F.3d 1222, 1227 n.4 (9th Cir. 2008)
(explaining that the defendant’s entry of an Alford plea does not preclude the
application of the modified categorical approach). The judicially noticeable
documents that the government submitted to the district court demonstrate that
Mendez was convicted of third-degree sexual assault for having sexual intercourse
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with the victim without the victim’s consent. See Gallegos-Galindo, 704 F.3d at
1274–75 (holding that sexual intercourse without the victim’s consent constitutes a
“forcible sex offense”).
AFFIRMED.
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