Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT U NITED S TATES OF A MERICA , No. 13-10664 Plaintiff-Appellee ,
D.C. No. v. 4:13-cr-01220- RCC-BPV-1 J UAN A LBERTO M ENDEZ -S OSA AKA Juan Mendez,
Defendant-Appellant . OPINION Appeal from the United States District Court for the District of Arizona Linda R. Reade, Chief District Judge, Presiding Argued and Submitted
January 16, 2015—San Francisco California Filed March 2, 2015
Before: J. Clifford Wallace, Milan D. Smith, Jr., and Michelle T. Friedland, Circuit Judges. Per Curiam Opinion
SUMMARY [*]
Criminal Law
The panel affirmed a sentence for unauthorized reentry into the United States after deportation, in a case in which the district court assessed a 16-level enhancement based on its conclusion that the defendant was previously convicted of Criminal Sexual Contact under section 2C:14-3(b) of New Jersey’s Criminal Justice Conduct Code, an offense the district court concluded was a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
The panel held that the applicable definition of “conviction,” for purposes of implementing the sentencing guidelines in the immigration context, is to be found in federal law, not state law; and that Chapter Four of the sentencing guidelines, and not the Immigration and Nationality Act, provides the proper definition of “conviction” for purposes of the enhancement.
The panel held that under Chapter Four’s definitions, the defendant, who pled guilty to the New Jersey offense, was “convicted of an offense,” which gave rise to a “prior sentence,” which received at least one criminal history point. The panel held that because the New Jersey statute is divisible and includes alternatives that do not involve the absence of consent, the district court properly applied the modified-categorical approach to determine that the defendant was convicted of the statutory alternative involving [*] This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. lack of consent. The panel concluded that based on the defendant’s admission in his plea colloquy before the New Jersey tribunal, the conduct for which he was convicted fit within the guideline definition of a forcible sex offense, and thus the definition of crime of violence.
COUNSEL
Henry L. Jacobs (argued), Law Offices of Henry Jacobs, PLLC, Tucson, Arizona, for Defendant-Appellant. Erica L. Seger (argued), Assistant United States Attorney, John S. Leonardo, United States Attorney, Robert L. Miskell, Chief, Appellate Division, Tucson, Arizona, for Plaintiff- Appellee.
OPINION
PER CURIAM:
Juan Alberto Mendez-Sosa appeals from the district court’s sentence of thirty-seven months in prison. The court imposed this sentence after Mendez-Sosa pled guilty to violating 8 U.S.C. § 1326(a), which prohibits unauthorized reentry into the United States after deportation. In applying the federal sentencing guidelines, the district judge assessed a 16-level sentencing enhancement because she concluded that Mendez-Sosa was previously convicted of Criminal Sexual Contact under New Jersey law, an offense which the judge concluded was a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). On appeal, Mendez-Sosa argues the 16- level enhancement was improper for two reasons. First, he argues that he was never “convicted” of the prior offense as that term is defined by either New Jersey law or the Immigration and Nationality Act. Second, he argues that even if he had been convicted of the prior offense, it was not a “crime of violence.” We affirm.
I.
We review de novo the district court’s selection of the
applicable definition of the term “conviction,” as well as the
court’s application of that term to the facts.
See United States
v. Leal-Felix
,
As to which federal law applies, the district court
correctly concluded that Chapter Four of the sentencing
guidelines, and not the Immigration and Nationality Act,
provides the proper definition of “conviction” for purposes of
*4
the 16-level sentencing enhancement.
Cf. United States v.
Pimentel-Flores
,
The propriety of the 16-level enhancement “depend[s] on whether the [prior] conviction receives criminal history points under Chapter Four” of the guidelines. U.S.S.G. § 2L1.2, cmt n.1(C). “Although the particular guideline at issue here (§ 2L1.2) does not define ‘conviction,’ the guideline that contains the general instructions for assessing a defendant’s criminal history does provide clear guidance.” Cuevas 75 F.3d at 782. Chapter Four states that, subject to some inapplicable exceptions, at least one criminal history point is to be added “for each prior sentence.” U.S.S.G. § 4A1.1(c). “Where a defendant has been convicted of an offense,” meaning “the guilt of the defendant has been established,” including “by guilty plea,” “but not yet sentenced, such conviction shall be counted as if it constituted a prior sentence.” Id. § 4A1.2(a)(4). Mendez-Sosa pled guilty to the New Jersey offense. Thus, under Chapter Four’s definitions, Mendez-Sosa was “convicted of an offense,” which gave rise to a “prior sentence,” which received at least one criminal history point. Id. §§ 4A1.1(c); 4A1.2(a)(4). Accordingly, as long as this “conviction” was for a “crime of violence,” the 16-level enhancement was proper.
II.
We review de novo whether a conviction under section
2C:14-3(b) of New Jersey’s Criminal Justice Code constitutes
a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
See United States v. Grajeda
,
As a result, the district court did not err in imposing the 16-level sentencing enhancement.
AFFIRMED.