United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1683
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Melvin Geovani Paz, *
*
Appellant. *
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Submitted: September 23, 2010
Filed: October 8, 2010
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Before LOKEN, HANSEN, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Melvin Geovani Paz pled guilty to illegal reentry into the United States in
violation of 8 U.S.C. § 1326(b). He appeals the district court’s1 16-level sentencing
enhancement for his prior deportation after a conviction for a “crime of violence.”
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
Paz, a citizen of Honduras, was deported from the United States in 2006, after
pleading guilty to second-degree sexual assault in violation of Arkansas Code §
5-14-125. The assault occurred between January 1998 and December 1999, when Paz
was between 25 and 27 years old. The victim, his girlfriend’s daughter, was about
five years old. According to the child, Paz was living in her home. While on the
couch together watching television, he touched the outside of her genital area, beneath
her undergarments. He initially denied the incident, but later admitted touching the
child between the legs once after consuming three or four beers.
In 2008, Paz entered the United States without applying to the Attorney General
for permission to reenter after a prior deportation. In June 2009, federal agents found
Paz in an Arkansas jail on charges of public intoxication, criminal impersonation,
failure to appear, and contempt of court/nonpayment of fines. Paz pled guilty to
unlawful reentry in violation of 8 U.S.C. § 1326(b) on January 11, 2010.
At sentencing, the district court applied U.S.S.G. § 2L1.2, the sentencing
guideline for illegal reentry by a previously deported alien. The Pre-Sentence
Investigation Report (“PSR”) classified Paz's sexual assault conviction as a “crime of
violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). This caused a 16-level increase in the
offense level. Paz objected, invoking Johnson v. United States and arguing that his
Arkansas sexual assault conviction was not a “crime of violence” because the use of
forcible physical action was not an element of his crime.
The district court applied the 16-level enhancement, ruling that Johnson did not
apply and that Paz’s sexual assault conviction was an offense enumerated in the
definition of a “crime of violence” in the guidelines commentary. See U.S.S.G. §
2L1.2(b)(1)(A)(ii) cmt. 1(B)(iii) (2009). Considering the advisory sentencing range
of 46 to 57 months, the district court sentenced Paz to 57 months of imprisonment and
three years of supervised release.
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In reviewing for procedural error, such as an improper calculation of the
advisory guidelines range, this court reviews de novo the district court’s interpretation
and application of the sentencing guidelines, and its fact-findings for clear error. Gall
v. United States, 552 U.S. 38, 51 (2007); United States v. Blankenship, 552 F.3d
703, 704 (8th Cir. 2009). Because Paz did not object to the underlying factual basis
for his sexual-assault conviction, this court accepts the facts set forth in the PSR. See
United States v. Rouillard, 474 F.3d 551, 554 n. 1 (8th Cir. 2007) (accepting as true
any unobjected-to facts set forth in the PSR).
The sentencing guideline for illegal reentry into the United States increases the
base offense level by 16 levels “[i]f the defendant previously was deported, or
unlawfully remained in the United States, after . . . a conviction for a felony that is
. . . a crime of violence.” See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2009). A “crime of
violence” is defined as:
Murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses (including where consent to the conduct is not given or is not
legally valid, such as where consent to the conduct is involuntary,
incompetent, or coerced), statutory rape, sexual abuse of a minor,
robbery, arson, extortion, extortionate extension of credit, burglary of a
dwelling, or any other offense under federal, state, or local law that has
as an element the use, attempted use, or threatened use of physical force
against the person of another.
U.S.S.G. § 2L1.2 cmt. 1(B)(iii) (emphasis added).
Paz pled guilty to sexual contact with a minor, and did not object to a PSR that
described his touching a five-year old “between her legs on the outside of her genital
area, under her undergarments.” A crime with these elements falls within the
enumerated offense “sexual abuse of a minor.” See United States v. Garcia-Juarez,
421 F.3d 655, 658-59 (8th Cir. 2005) (holding that achieving sexual gratification by
unlawfully touching a child as prohibited by Iowa Code § 709.8, which prohibits
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touching a child’s genitals, constitutes sexual abuse of a minor); United States v.
Rodriguez, 979 F.2d 138 (8th Cir. 1992) (finding that “[t]here is no question that
. . . lascivious acts with children of the tender age of ten, is by its nature a crime of
violence,” where defendant fondled or touched genitals of a minor). “[E]numerated
offenses are always classified as ‘crimes of violence,’ regardless of whether the prior
offense expressly has as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G. Manual app. C, amendment
658 (2003). This court therefore holds that Paz’s sexual assault conviction is a crime
of violence under U.S.S.G. § 2L1.2(b).
Paz focuses almost all his argument on Johnson v. United States. There, the
Supreme Court held that a Florida battery statute that criminalizes the mere touching
of another person is not within the catch-all definition of a “violent felony” in the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), which requires as an
element “the use, attempted use, or threatened use of physical force.” See Johnson
v. United States, 130 S.Ct. 1265, 1269-74 (2010). Here, the sentencing guideline has
a similar catch-all definition of a crime of violence — “. . . or any other offense under
federal, state, or local law that has as an element the use, attempted use, or threatened
use of physical force against the person of another.” U.S.S.G. § 2L1.2(b)(1)(A)(ii)
cmt. 1(B)(iii) (2009). Paz argues that because “mere touching” is not “physical force”
for purposes of the Armed Career Criminal Act, his conviction for sexual touching of
a five-year-old is not “physical force” for purposes of U.S.S.G. § 2L1.2.
Unlike the Armed Career Criminal Act’s definition of a “violent felony,” the
sentencing guideline at issue lists “sexual abuse of a minor” as an enumerated felony
that is a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) cmt. 1(B)(iii) (2009).
Because enumerated offenses are crimes of violence regardless of whether force was
used, the catch-all definition of a “crime of violence” in the commentary to U.S.S.G.
§ 2L1.2 is irrelevant. The district court properly applied the sentencing enhancement
for illegal reentry into the United States after a prior crime of violence.
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* * * * * * *
The judgment of the district court is affirmed.
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