UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4578
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS ALFREDO VASQUEZ-MELENDEZ, a/k/a Oscar Diaz-Mendoza,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:08-cr-00116-FDW-1)
Submitted: April 1, 2010 Decided: July 8, 2010
Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Matthew R. Segal,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina; Steven Slawinski, Charlotte, North Carolina, for
Appellant. Edward R. Ryan, United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Alfredo Vasquez-Melendez appeals his forty-eight
month sentence imposed after his guilty plea to unlawful reentry
of a deported alien, in violation of 8 U.S.C. § 1326 (2006).
Vasquez-Melendez’s sole argument on appeal is that the district
court erred in calculating his guideline sentencing range when
it increased his offense level by sixteen levels pursuant to
U.S. Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(ii)
(2008). Finding no error, we affirm.
This court reviews a sentence for reasonableness,
using an abuse of discretion standard of review. Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires the court to ensure that the district court committed
no significant procedural error. United States v. Evans, 526
F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008).
Procedural errors include “failing to calculate (or improperly
calculating) the Guidelines range” or “failing to consider the
§ 3553(a) factors.” Gall, 552 U.S. at 51. The district court
must make an individualized assessment based on the facts
presented by applying the relevant § 3553(a) factors to the
circumstances of the case. Id. The court then considers the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances. Id.
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The contested sixteen-level increase was based on
Vasquez-Melendez’s prior conviction under N.C. Gen. Stat.
§ 14-202.1 (2009). In assessing a sentencing court’s
application of the guidelines, this court reviews its legal
conclusions de novo and its factual findings for clear error.
United States v. Mehta, 594 F.3d 277, 281 (4th Cir. 2010).
Section 2L1.2(b)(1)(A)(ii) of the Guidelines directs a
sixteen-level enhancement to the base offense level if the
defendant was previously deported from the United States
following “a conviction for a felony that is . . . a crime of
violence.” A “crime of violence” is defined to include “sexual
abuse of a minor.” USSG § 2L1.2 cmt. n.1(B)(iii). “Sexual
abuse of a minor” need not be a crime that requires the use, or
threatened use, of physical force against another, but must be a
crime that prohibits the “physical or nonphysical misuse or
maltreatment of a minor for a purpose associated with sexual
gratification.” United States v. Diaz-Ibarra, 522 F.3d 343,
350, 352 (4th Cir. 2008) (internal quotation marks omitted)
(holding that a prior Georgia conviction for felony attempted
child molestation qualified as a “crime of violence” under
§ 2L1.2(b)(1)(A)(ii)).
To determine whether Vasquez-Melendez’s prior crime
constituted “sexual abuse of a minor,” this court applies a
categorical approach, looking only to the statutory definition
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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.” See
Taylor v. United States, 495 U.S. 575, 600-02 (1990). Having
done so, we conclude that Vasquez-Melendez’s prior offense was
properly considered to be sexual abuse of a minor, and therefore
a violent crime that subjected him to an enhanced offense level.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the 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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